Across recent decades, much has been learned about system vulnerabilities that can be exploited by political actors interested in weaponizing science for public harm or private gain. Several key challenges are apparent.

Authority versus politicization risk. Who should hold the authority on matters of scientific integrity and where should that person be positioned within agencies? Placing a scientific integrity officer in a research office places them close to the scientific activities they oversee and farther from political appointees who may seek to inappropriately influence science activities. But this positioning can be removed from policy matters and removed from the level of authority necessary to adequately oversee scientific integrity across an agency or department. By contrast, placing scientific integrity authority closer to the political level, such as designating scientific integrity authority to a politically appointed chief scientist will instill more authority for matters of scientific integrity, but relies on a good-faith actor in that role. In either case, what happens when it is the political heads of agencies who are accused of scientific integrity violations? A scientific integrity official may not feel empowered to act.

Blurred lines between science and policy decisions. While it is a clear violation of scientific integrity when a political appointee changes a number on a scientific report to achieve more politically convenient math, or when a scientist is muzzled from speaking about a politically sensitive finding, many scientific integrity challenges occur at the science and policy interface—places where it can be unclear what is a scientific decision and what can and should be a political decision. How can the public discern whether scientific integrity was compromised if this distinction is blurred? This lack of transparency in science policy processes can make it easier for political actors to interfere with science for political purposes. 

The challenge of durability. The second Trump administration has made abundantly clear the need for mechanisms and authorities that sustain scientific integrity across administrations, even in hostile environments. In a single executive order on May 23, 2025, the Trump administration erased much of the progress that was made under the Biden administration on scientific integrity. While some agencies have persisted, the president’s move made apparent how vulnerable the entire apparatus was to a president uninterested in the project of respecting science in government. 

Future scientific integrity efforts must be different. They must be stronger. They must be more integrated into federal activities and authorities. And we know the formula: Reimagined scientific integrity infrastructure in the executive branch must have transparency, independence, and authority.

1. Transparency

First, there must be greater commitment to transparency in the process by which science informs decisions across the government. One opportunity is to allow the public to submit allegations of scientific integrity violations and for those submissions to be publicly posted. This would allow the public to see where challenges may exist and provides an avenue for public interest groups, watchdogs, and members of the public to raise concerns. Such a system would also create external support and political cover for scientific integrity officials to investigate matters of high public interest, even if these matters are politically inconvenient to agency leaders or involve senior agency leadership, because there would be public pressure and an opportunity for accountability.

We can also require public reporting on scientific integrity. This was a requirement under the Biden-era scientific integrity framework but could be made stronger by linking scientific integrity reporting to congressionally mandated reporting, requiring reporting in the context of agency budget requests, or other “built-in” processes. Such transparency and integration in public reporting requirements would allow for more cross-agency assessments and trend discernment that can inform future improvements. Seeing how agencies compare can allow for healthy competition and improvement across administrations and provide additional scrutiny and support for underperforming agencies where scientific Integrity issues persist. To facilitate such transparency and cross-agency coordination over future administrations, the National Science and Technology Council (NSTC) Subcommittee on Scientific Integrity could be codified into law, the way some other subcomponents of NSTC are.

2. Independence

The independence of federal science activities is critical, both for the US science enterprise itself to thrive and for science activities to play their critical role in our federal system of checks and balances. Government scientists collect and share data critical for the nation, speak out when scientific information is misused and ignored for public harm or private gain, counter disinformation from political leaders, and ensure scientific truth reaches the public. But those functions only happen when the independence of federal science is preserved and government scientists feel empowered to do their jobs freely.

This can be achieved when career civil servants’ jobs are protected and mechanisms for clear distinctions between science and policy are developed and enforced. In laws like the Clean Air Act and the Endangered Species Act where provisions require decisions based on science, it is publicly known where the science ends and the policy decisions begin. But many decisions do not have this clear delineation either in agency structure or law, so scientific integrity must be safeguarded through other mechanisms of separation.

Federal statistical agencies, for example, have clear practices and protocols that buffer data collection and publication from political influence. These mechanisms could be expanded to other federal science activities and agencies, such that science and scientists are better protected from political influences, and federal employees are empowered to freely speak up, push back, and serve as guardians of the science and truth. Such measures to enhance the independence of federal science also combat corruption, because they allow federal science and scientists to share reliable data and scientific truth, even when political actors seek to obscure it. Federal scientists, in other words, keep the score.

3. Authority

For scientific integrity policies and practices to be recognized and enforced across the government, they must be governed by officials with a necessary weight of authority. One way to achieve this is to integrate scientific integrity infrastructure within other existing federal authorities and processes. Such integration would have several benefits. It would put the responsibility of shepherding scientific integrity into the hands of more senior officials. This would help sustain scientific integrity infrastructure across administrations, because the principles and practices would be ingrained across more people and processes throughout the government. Across the U.S. science and technology landscape, there are several key actors that could have expanded roles on scientific integrity, such as the comptroller general; the Government Accountability Office; inspectors general; the National Academies of Sciences, Engineering, and Medicine; the National Academy of Public Administration; the National Archives and Records Administration; and the Office of Special Counsel.

Codifying such roles in federal law, such as the Scientific Integrity Act introduced in the 119th Congress, is a key strategy for achieving integration with aligned and authoritative institutions. The Scientific Integrity Act would require federal agencies that fund or conduct research to adopt and enforce scientific integrity policies, helping protect federal science from political interference and ensuring that research findings are not suppressed, distorted, or manipulated. Enacting legislation of this kind would be an important step toward building a more durable scientific integrity infrastructure that can withstand changes in administrations while strengthening transparency, accountability, and public trust in government science.

Creating and implementing mechanisms that adhere to this framework of transparency, independence, and authority across the executive branch will ensure not only that the US science and technology enterprise can thrive, but also that any scientific integrity infrastructure provides anti-corruption measures and bolsters the nation’s democratic processes and institutions.

In one telling, the rise of platforms and erosion of legacy media and journalism are to blame. To address this, many proposed reforms focus on subsidizing the news industry, believing that doing so will bolster the production of journalism and other civically valuable knowledge goods. But—as I explain below—these attempts will likely fail. In particular, structures that compel payouts from platforms to news industry actors create new forms of dependency on tech companies. They also wrongly assume that the news industry in its current form will choose to invest in investigative journalism and other high-value news. As I explain below, a different—and in some ways better—model would harness the government’s spending power to subsidize and support journalism.

First, a brief recap of the existing tensions between news institutions and platforms. The emergence of large platform intermediaries redirected reader attention and advertising dollars away from news organizations and toward social platforms. Social media exploited this shift when they throttled traffic to external websites in order to capture news organizations’ audiences and capitalize on continued engagement within their own walled gardens. With the rise of large language models and chatbots, traffic to many news websites may collapse, auguring a new era of desperate searching for new revenue streams.

It would be incorrect, however, to place all the blame for the challenges currently facing journalism on platform companies. The ownership of news organizations has shifted: Half of the nation’s newspapers are owned by hedge funds, while other leading news organizations are personally controlled by billionaires or wealthy families. News organizations have backed away from investigative journalism in pursuit of stories that boost web traffic and pageviews. Political attacks and social distrust also undermine journalism. Under the second Trump administration, federal funding cuts have kneecapped many public broadcasting stations, and FCC Chair Brendan Carr has pledged to revoke broadcast licenses as punishment for negative news coverage. National surveys demonstrate that trust in the media is both deeply polarized and on the decline.

Together, these shifts have significantly weakened legacy media’s ability to perform the core functions they long were thought to fulfill. First, journalistic institutions performed a watchdog or checking function: They produced journalism that advanced accountability and limits abuses of power. Second, news media informed the public and thereby made it possible for individuals and groups to participate in the project of democratic self-governance. Third, news industry actors often championed transparency and expressive rights, litigating significant cases to obtain access to government proceedings and records and defend the essential rights of newsgatherers. Economic, political, and technological change threaten all three of these functions.

What should be done to ensure that these core functions remain viable? Over the last several years, lawmakers have appeared intrigued by provisions that would require tech platforms to directly compensate news organizations. Several jurisdictions have contemplated or enacted one or more of these arrangements. The first generation of policy frameworks endorsing these wealth transfers were often referred to as “link taxes,” and required online platforms to pay each time they linked to news publications. A second-generation framework for compensation enables collective negotiation by news publishers with tech platforms. This type of arrangement—typified by the Australian News Media Bargaining Code, Canada’s Online News Act, and proposals introduced in the U.S. Senate and California legislature—requires platforms to bargain with publishers for the ability to link to their content.

Both the link tax and the bargaining code frameworks have serious drawbacks. Most significant is the risk that they may fail to create workable structures to incentivize platforms to bargain with news organizations. In Canada, for example, Meta withdrew entirely from providing access to news, blocking news links rather than paying news organizations. Even in Australia, where tech platforms have entered into deals with publishers, it is unclear how equitable these arrangements are: The terms are secret, and it appears that large publishing companies have disproportionately benefited from the agreements.

Relatedly, the compensatory frameworks may simply be wrong to assume that news industry incumbents will effectively advance the public interest. Even some news organizations with substantial financial backing, like The Washington Post and the Los Angeles Times, have slashed newsrooms and reoriented editorial pages to be more sympathetic toward the Trump administration. Nor is it self-evident that news organizations would use payouts from tech platforms to hire additional journalists or reinvest in neglected local news or accountability journalism.

A better way of affording financial stability to journalists and organizations pursuing socially beneficial journalistic functions would be through public funding, as Martha Minow has suggested. Indeed, federal funding has long been used to encourage the production of knowledge goods when market incentives fail to adequately incentivize that activity. And, as with the production of scientific research, the government’s spending power enables it to choose whether and how to support the production of journalism.

If the government created an institution—let’s call it the National Journalism Foundation—with the primary goal of facilitating federal support of journalism, policymakers would confront questions related to institutional design. Key choices include, first, whether a National Journalism Foundation ought to be public (e.g. the National Science Foundation) or private (e.g. the Corporation for Public Broadcasting). Second, the funding mechanism is crucial: As the experience of the now-defunct Corporation for Public Broadcasting underscores, the annual appropriations process leaves organizations vulnerable to instability and political whims in a way that funding through, for example, an excise tax may minimize.

The most significant set of issues concern how government funders ought to decide which journalistic endeavors to fund. The experience of federal science funding illustrates the possibility that a National Journalism Foundation could use some of the same structures to determine the merit and impact of journalistic work as it does for scientific research—namely, peer review, considerations of geographic diversity, and defined criteria for the production of knowledge in the public interest.

Comparing journalism to scientific research underscores the difficulty of bridging a system of public funding to the professional norms of a knowledge community that conceives of itself as independent. To opponents, the specter of bureaucrats weighing the social and monetary value of journalism to determine how to support it undermines the very idea of an independent press and the watchdog role we expect journalism to fulfill. To be clear, however, this tension is not entirely unique to the press. Throughout the 20th century, scientific researchers also had to determine how to maintain scholarly independence while benefiting from government support of basic research.

Journalistic institutions often think of their work as antagonistic to the government and the powerful. This conception makes state support particularly thorny, as media institutions negotiate how to reap the benefits of government patronage without becoming captured by their supporters. But accepting the patronage of platform companies is no less tricky, and in an era of platform oligarchy, perhaps even more difficult to reconcile with journalistic independence.

The Justice Department abandoned the case against Mr. Trump after he won the 2024 election, citing a longstanding departmental policy against prosecuting sitting presidents. Since Mr. Trump returned to the White House, the Justice Department has worked hand in glove with his current lawyers to suppress the department’s report about its investigation of his actions. Judge Aileen Cannon of the U.S. District Court for the Southern District of Florida, a Trump appointee who presided over Mr. Trump’s case, has issued an order prohibiting the Justice Department from disseminating the report—and effectively prohibiting Jack Smith, the special counsel who wrote it, from speaking about it publicly or even testifying about it to Congress.

Judge Cannon’s order should be vacated and Mr. Smith’s report released. There is a respectable argument for sparing a sitting president the burden of defending himself from criminal charges, but if presidents are to be immune from prosecution while in office, it’s all the more important that Congress and the public have access to the information that would empower them to hold the president accountable in other ways.

The Justice Department began its investigation of Mr. Trump in early 2022 after the National Archives and Records Administration discovered that some of the records he had taken from the White House were classified. Later that year, when Mr. Trump declared himself a candidate for the presidency, Attorney General Merrick Garland appointed Mr. Smith as a special counsel to take over the investigation—a move meant to ensure the investigation’s political independence.

Mr. Smith eventually sought an indictment in the Southern District of Florida, and in June 2023 a grand jury returned one. Mr. Trump was accused of taking documents to Mar-a-Lago, lying about whether he had them, showing them to people not authorized to see them and refusing to return them even after having been served with a subpoena. The indictment also charged Mr. Trump’s valet, Waltine Nauta, with helping him conceal the documents. Just over a month later, a superseding indictment added charges against Mr. Trump, Mr. Nauta, and Carlos De Oliveira, Mr. Trump’s property manager at Mar-a-Lago.

If a jury had convicted them on these charges, Mr. Trump’s associates would probably have been sentenced to substantial prison terms, and Mr. Trump himself might have spent the rest of his life behind bars.

The Justice Department policy that spared Mr. Trump this possible fate—the policy against prosecuting sitting presidents—originates in a legal opinion that the department’s Office of Legal Counsel wrote in 1973 and reaffirmed in 2000. It stems mainly from the concern that requiring a president to answer criminal charges would compromise his or her ability to discharge the duties of the office. The department’s lawyers reasoned that it would be “incongruous” to allow a jury of 12 citizens to interfere so profoundly with a president’s ability to govern. They concluded that if a president’s mandate was to be terminated, it should be through impeachment.

It is no surprise, given this policy, that Mr. Smith abandoned the prosecution once voters returned Mr. Trump to the White House. But the suppression of Mr. Smith’s report is highly irregular and disturbing.

After the Justice Department abandoned the case against Mr. Trump in 2024, Mr. Smith completed his report and submitted it to the attorney general, as departmental regulations required. Mr. Trump and his co-defendants asked Judge Cannon to issue an order prohibiting the Justice Department from disseminating the report, contending that its release would compromise Mr. Nauta’s and Mr. De Oliveira’s rights to a fair trial.

In January 2025, Judge Cannon issued the order, even though Justice Department regulations authorized the attorney general to release the report, even though Mr. Smith had created a version of the report that minimized the identification of witnesses and co-conspirators and redacted other sensitive information, and even though Mr. Smith himself had made clear that the report should not be released to the public while the charges against Mr. Nauta and Mr. De Oliveira remained pending.

In February 2025, the Justice Department dropped the charges against Mr. Nauta and Mr. De Oliveira, making the concerns about their fair-trial rights moot. But just a few months ago, Judge Cannon reaffirmed her order, this time contending Mr. Smith had been appointed unconstitutionally and that therefore his report should be suppressed forever.

The current Justice Department, controlled as it is by lawyers who have demonstrated repeatedly that they are more loyal to Mr. Trump than to the rule of law, has made plain that it will not release the report even if Judge Cannon lifts her order; in one brief, department lawyers wrote that the report “belongs in the dustbin of history.” (Todd Blanche, the acting attorney general whom Mr. Trump has nominated to lead the Justice Department, was Mr. Trump’s lead counsel in the classified documents case.)

But Judge Cannon’s order does more than just constrain the Justice Department; it has also prevented civil liberties and news organizations from securing the report’s release under the Freedom of Information Act. The Knight Institute, which I direct, requested the report under the act last year; the Justice Department pointed to Judge Cannon’s order to justify rejecting our request. A federal judge in New York dismissed a similar request made by The New York Times on the grounds that Judge Cannon’s injunction could be challenged before Judge Cannon or not at all.

As it happens, Judge Cannon may have inadvertently provided a way to force the report’s disclosure. Before prohibiting the Justice Department from releasing the report, she insisted on reviewing the report herself. That brought the report within the scope of the First Amendment, which gives the public a presumptive right of access to most judicial hearings and related documents. Judge Cannon rejected a petition filed by the Knight Institute asserting a First Amendment right of access to Mr. Smith’s report, but we have appealed her ruling. The U.S. Court of Appeals for the 11th Circuit has said it will hear oral argument in the fall.

Mr. Smith investigated Mr. Trump for conduct that appears to have entailed an astonishing betrayal of the public’s trust as well as the nation’s security. Legislators and ordinary citizens should have the opportunity to read the report for themselves. It is incoherent to immunize the president from prosecution on the theory that he can be held accountable through the political process—and then to deny Congress and the public information that would help them do so.

The following can be attributed to Nicola Morrow, legal fellow at the Knight First Amendment Institute:

“Even a small amount of location data can reveal intimate details about our lives and our First Amendment-protected activities. Today’s decision is a powerful reminder that in the age of big data and panopticonic technologies, our 250-year-old Fourth Amendment remains an important bulwark against government surveillance.”

Read today’s decision in Chatrie v. United States here.

Read more about the case here.

Lawyers on the case include Nicola Morrow, Jake Karr, and Alex Abdo for the Knight First Amendment Institute; and Bruce D. Brown, Lisa Zycherman, Gabriel Rottman, Mara Gassmann, and Grayson Clary for the Reporters Committee for Freedom of the Press.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org

I don’t really see any new theories around, rather, I see the revival of old theories.

Jan-Werner Müller:

In the 20th century, regimes were on the whole much less reluctant to deploy outright violence. They didn’t worry so much about being seen as openly repressive, whereas in the 21st century, there was much more of an attempt to basically try to convince both domestic but especially international audiences that one still had the rule of law, that one still had democracy.

Madhav Khosla:

Welcome to Lawyering Without Law, a podcast by the Knight First Amendment Institute where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country’s slide into authoritarianism. I’m Madhav Khosla. I’m the Knight Institute Senior Fellow and a Professor at Columbia Law School. My co-host Katy Glenn Bass is away this week.

Joining me today are two guests: David Dyzenhaus and Jan-Werner Müller. David is a Professor of Law and Philosophy at the University of Toronto, and the leading scholar of legal and political theory, constitutionalism, the rule of law, and the legal challenges posed by states of emergency. Jan is a Professor of Politics at Princeton University whose research examines democracy, constitutionalism, and the history and theory of populism. I’m having both scholars on the podcast to talk about the history of 20th century authoritarianism and what that can teach us about the challenges facing democracies today. David and Jan, welcome to Lawyering Without Law.

Jan-Werner Müller:

Thanks for having us.

David Dyzenhaus:

Yes, thank you very much.

Madhav Khosla:

Today in the United States, but also elsewhere, we are seeing new legal theories emerge that change the liberal democratic constitutional model that has in some sense defined the post-war era. I thought we might step back and focus on history for a moment. Two paradigmatic if rather different authoritarian regimes of the 20th century are Nazi Germany and Apartheid South Africa. One feature of these regimes is that they did not simply abandon law, but in fact used lawyers, courts, legislation, and legal theory to govern. Jan, I was wondering if we could start off with you and just to explore what these cases might teach us about the difference between the rule of law and the rule by law.

Jan-Werner Müller:

I think I’d like to defer to David on South Africa, but as a more general point that might frame our discussion, I think it’s worth pointing to a book that came out about four years ago that I think remains a very important contribution to understand the differences between 20th century authoritarianism, broadly speaking, and what we are seeing today. The book I’m referring to is by our colleagues, Guriev and Treisman. It’s called Spin Dictators. It proves with plenty of empirical evidence that what they call fear dictatorships in the 20th century was rather different from what they call indeed spin dictatorships in the 21st century, both, to be sure, used law. There was no regime that somehow was able to transcend law altogether, but according to them, the major difference is that in the 20th century, regimes were on the whole much less reluctant to deploy outright violence. They didn’t worry so much about being seen as openly repressive, whereas in the 21st century, there was much more of an attempt to basically try to convince both domestic but especially international audiences that one still had the rule of law, that one still had democracy.

I think we all know prime examples of this in our day. Viktor Orbán spent an inordinate amount of time and resources in trying to fool the European Commission and plenty of other international audiences into thinking that, yes, Hungary still had the rule of law. The concept of autocratic legalism has become very popular in terms of trying to capture this particular phenomenon where you seemingly observe procedures correctly, where you also move very slowly in many cases, where it simply doesn’t look like you are doing something that is so authoritarian.

Now, to be sure, authoritarian regimes today still, so to speak, hold violence in reserve. Putin, who for a long time wanted to be seen as a Democrat, of course after 2022, dropped all pretenses, was done with a facade, became outright oppressive. So we shouldn’t be starry-eyed about what’s happening today, but again, what Guriev and Treisman show is that there is a real difference. And that also means, I think by implication, that law probably plays more of a role today, that it’s more important for these regimes to be very careful in terms of how they devise and how they implement various forms of autocratic legalism.

Madhav Khosla:

Terrific. Thanks so much. David, could you tell us a bit about South Africa and how we should think about it in this context?

David Dyzenhaus:

Well, even though I should defer to Jan about Nazi Germany, I’m going to start not with South Africa, but with Nazi Germany, and with a book that I think we all know well and that’s Ernst Fraenkel’s The Dual State. So Fraenkel in his book, The Dual State, which has come back into vogue as providing a set of tools that one might be able to analyze present day developments with, argues that the Nazi state has to be understood as having two states side by side.

On the one side is the normative state, which is a state that was still governed by law in some sense, the law that remained from the Weimar period, also Nazi law that still worked through ordinary legal mechanisms, but on the other side was the prerogative state. And in the prerogative state, Nazi officials just did what they pleased in order to serve the interests of the party and what’s more officials from the prerogative side could intervene at any moment in the normative side and do as they pleased. And I think what one sees there in Nazi Germany, if Fraenkel’s analysis is by and large correct, is that law still operates, but it operates side by side with a regime that can use violence at will.

I think that South Africa during the Apartheid era presents an interesting transitional case. The Apartheid government proudly proclaimed both domestically and internationally that it was on the side of the rule of law, and I think these proclamations were by and large sincere. So it did seek to govern through law. But the way that it governed often was to give vast discretionary powers to officials in order to do as the Apartheid government wanted. And I think one sees the same phenomenon today in the autocratic regimes of the present. And so there may not be actually such a sharp qualitative difference, I think, between the kind of legal government that one observes in the ’30s, and legal government today.

Madhav Khosla:

David, to stay with you and just to pivot slightly to today, your forthcoming book, The War Against Law, engages with a new sort of legal theory that has emerged, the most prominent articulation of which has come from Adrian Vermeule and namely common good constitutionalism. Could you perhaps tell us a little bit about what you think a good working definition might be of the theory?

David Dyzenhaus:

Let me start by disputing something that you said right at the very beginning, Madhav, when you, I think spoke about new theories emerging. I don’t really see any new theories around, rather, I see the revival of old theories. And if one looks to theories that were put forward in the late 1920s in Weimar and then in the 1930s by people like Carl Schmitt and Eric Voegelin, I think what one sees with Vermeule and also with his counterparts in the United Kingdom is a revival of a certain understanding of political community that requires a law as an instrument, but there’s nothing really new in these theories.

Jan wrote a really excellent article some time ago about common good constitutionalism and the title I think is Rule of Law, Rule by Law, Or Something Else Entirely? With a question mark. And he doesn’t answer the question explicitly whether what’s happening with common good constitutionalism, whether it is something else entirely, but I think implied in the argument is that it probably is something else entirely. So what is the something else entirely? It’s the rule of principles that are somehow revealed to an elite and then imposed on the population, and I think this is an anti-constitutional, and in a real way, anti-legal idea of political community.

Madhav Khosla:

And Jan, just to perhaps push you maybe to answer the question mark, to stay with David’s point that in Nazi Germany, figures like Schmitt attack liberal legality as unable to defend the political community. How do you compare the structure of that argument with common good constitutionalism’s critique of liberal constitutionalism rights and even judicial constraint?

Jan-Werner Müller:

Allow me to say two things. One is a probably superfluous pedantic remark, which is really about how we think about the relationship between particular legal theories and then larger visions of politics. I think many people might remember that after the Second World War, there was a very strong tendency essentially to blame legal positivism for the demise of Weimar, and to say that this had left the Republic defenseless, this was agnostic, neutral, and something else was needed. And it took a while for people to realize that actually this wasn’t really entirely accurate.

Just to name the most obvious example of a great positivist who actually also contributed a great democratic theory in defense of the Republic, just think back to Hans Kelsen as somebody who clearly had actually offered a whole range of reasons why republics need to be defended. Although to be sure in his writings on so-called militant democracy, he also came up very clearly in saying that, look, if a majority wants to be done with democracy, you have to go down with the ship, and then you can’t really appeal to values that transcend anything in terms of trying to save the polity. Except footnote to the footnote if I may, I think historically there’s really no such case. There is no such case of a people in a free and fair election with a majority saying, “We want to be done.” And then the Kelsen problem really arises.

And a footnote was only then also that people realized that actually some of those who’d undermined the Republic were the antipositivists, Schmitt foremost among them, but he wasn’t the only one. I think we always need to be careful in terms of short-circuiting a particular legal approach or legal philosophy with then particular political or political standpoints.

Now to finally, secondly answer your question, I would just echo David in saying that, yes, there’s a lot of fancy footwork in terms of Adrian Vermeule trying to recover various theories appealing to what he takes to be longstanding classical traditions, but ultimately when everything is said and done, what is being justified is an extraordinary concentration of power. And even in moments when it seems like something else is being suggested, example, the idea of subsidiarity, which comes out of Catholic thinkings about the polity where you basically say certain problems, policy challenges should be dealt with at the appropriate decentralized local level, you shouldn’t automatically centralize power.

Even there, there’s immediately the kind of caveat that says, “But it’s also okay, if necessary, to completely centralize power.” So to put it bluntly, what you initially might feel you’re getting is a lot of Thomas Aquinas, is a lot of Roman law and so on, but you scratch the surface and then ultimately there’s a particular version of Carl Schmitt that remains, and that ends up justifying, as David was saying, basically enormous amount of discretion for an elite, which of course will say that it acts for the sake of the common good and does good things for the people and so on, like everybody does, but where there are no meaningful constraints anymore.

Madhav Khosla:

I think that that’s right in that for liberals, common good constitutionalism quite clearly seems to concentrate too much power, and in some ways it gives officials too much discretion to define the common good. But what’s interesting is that scholars of common good constitutionalism present themselves self-consciously as anti-liberal, but they don’t present themselves as anti-legal. And do you think that there’s some way in which we can pass that distinction? Is it meaningful? Is it simply artificial?

Jan-Werner Müller:

Well, I would gently politely ask what it would even mean to be anti-legal. Very few people at law schools, as far as I’m aware, go around and say, “I’m all out anti-legal.” So of course they make arguments which as already internet deploy certain conceptual resources, seemingly draw on established traditions, try to employ certain methods.

As you know, Vermeule basically is very keen to say, “Look, don’t panic. I’m actually using Ronald Dworkin here as well. This is somebody you know, this is going to be okay.” But none of that really settles the debate in terms of whether anything that we would want to see as the rule of law, which I think is not a uniquely liberal preoccupation.

I mean, it goes back a little bit to what David was talking about initially when he described the dual state in terms of saying, “Look, are there going to be moments where essentially we are dealing with impunity because there’s not going to be any recourse anymore?”

That’s not as any uniquely kind of liberal worry to have. And I think you could say all this without being starry-eyed, naive about the rule of law and clearly all its deficiencies, especially but not only in the United States, it remains legitimate demand to say, “Well, empowering people to act without meaningful constraints has a tendency to go wrong in certain ways.”

Madhav Khosla:

David, one of the very significant features in your work is an effort to both carefully distinguish between historical cases, and to carefully draw connections. So for instance, you are very careful to distinguish between Schmitt and the political philosopher Eric Voegelin’s authoritarianism and outright Nazism. Similarly, I think one of the things that you’re trying to do in some of your new work is to connect the UK contemporary debate to Apartheid-era war against law and especially the effort to reshape jurisprudence so that the executive has maximum latitude outside legal controls.

Can you say a little bit about how we in this moment should actually look at the 20th century? What’s the right level of historical analogy? How do you draw from it? In some ways, part of the struggle actually with invoking Nazi Germany is that it almost puts the bar too high. It almost makes it the case where if you think that, oh, well, that’s not happening, things must be all right. And I think in a way, some of what a lot of people feel and are dealing with is actually what are the examples and what do we learn from them?

David Dyzenhaus:

I think it’s instructive to look at Nazi Germany and to read books like Fraenkel’s The Dual State, but it may be more instructive to look at other states at that time at Italy, at the fascist state that Dollfuss tried to establish in Austria, and also at the state that conservatives tried to put in place in the late ’20s and early ’30s in Germany. It’s a mistake I think, and I say this in my book that’s about to appear, but I said it elsewhere to call Carl Schmitt a Nazi jurist. I don’t think that Schmitt was a Nazi.

Now, Yan has written the best book that’s out there about Schmitt and knows more about him than I do, but Schmitt, as I understand him, only joined up with the Nazis for rather craven reasons, and also because I don’t think he had any principled objection to what they were doing. But before the Nazis seize Europe power, Schmitt was working with the people who were trying to crush both the Nazis and the Communist Party so these were the mostly Catholic aristocrats who starved the late Weimar cabinets. So they wanted to put in place a form of authoritarian rule that was, I think, probably quite different from Nazism. It may not have used prerogative to the same extent.

In some ways, I think one can understand Schmitt and perhaps some of the people are writing today in the common good constitutionalist camp as disappointed positivists if you understand positivism as a very crude doctrine that says that what you need to put in place is a very stable regime that can then enact law that has a clear content which officials can just apply without having to rely on their own moral judgment. This is very much the image that dominates Schmitt’s first book about law, Gesetz und Urtile.

He’s a disappointed positivist. How does one get rid of discretion in the law? And I think eventually, he comes up with the idea much later that what one needs to put in place is a substantively homogeneous population, and then you can have rule by law if not the rule of law. So there is this very instrumental idea of law that I think is common to these people, but it is somehow an idea that does without the rule of law, which is I think the contrast that Jan was drawing attention to in this title, rule by law, rule of law, or something else entirely.

Madhav Khosla:

That actually is a terrific way to pivot to a slightly different theme that a lot of us have been thinking about. So common good constitutionalism is at least on many of our understandings, incompatible with or in some deep tension with the rule of law, if only for the kind of discretion that it gives public officials and elites. Is it also incompatible with actually certain ideas about the legal profession insofar as it instrumentalizes law in the way that David described? Jan, I was wondering if you could just comment on just how you think it actually might shape our understanding of professional identity, and in fact, what it means to be a lawyer in a particular modern society.

Jan-Werner Müller:

Well, I’m flattered that you would think a non-lawyer would be able to hold forth and tell you the ultimate truth about this.

Madhav Khosla:

I actually think the non-lawyer’s the best person. The lawyer will just tell us what we want to hear.

Jan-Werner Müller:

So I would say two things. One is more specific, the other is maybe more general. The first one is that as we’ve seen in the United States, I think it’s possible to exert quite significant pressure on individual lawyers to go along with one what then might be revealed as being very close to or maybe actually being professional misconduct. And maybe that’s shocking on a certain level. I’m not saying that’s inspired by common good constitutionalism, but I think it’s too much of a stretch to say, yes, you have a very powerful executive that seems unconstrained, that is very willing to grab power, that does autocratic legalism on the one side, but then also on many other occasions.

So it’s basically more like Trump, dare I say, as a businessperson, let’s just do something, let’s create some facts. People probably know it’s illegal, but let’s see what happens. Maybe they’re going to settle out of court, maybe somebody does go along. These are two very different modalities. And for the second one, you still need lawyers who maybe try to make the case, try to find settlement and so on. So it is astonishing how many people seem to be willing to go along, and then it may well be revealed that if maybe some of them end up being disbarred, that yes, they actually crossed the line.

But secondly, and maybe less obviously, I think a lot of aspiring autocrats today more broadly like to attack professions, because if you think about the parallel with academia, there’s very often a similar suggestion that professionalism to begin with is a kind of sham that these are people who, yes, are credentialed in a certain way, but ultimately it’s a nefarious self-dealing, self-reproducing liberal elite, and we shouldn’t really respect their authority. So if they say something, be it about the law or be it about climate or be it about another topic, we can probably discount it. Or it’s probably just a nefarious way of constraining the people who is uniquely represented by the great populist leader and so on. So I think that’s somewhat special to our times maybe, that at least some of these regimes have a more broader attack on professionalism. I think there they can to some degree also actually benefit from very different figures having paved the way.

If you think about earlier attacks on universities, let’s just take an example from the UK, Thatcher’s attacks on universities saying most of these people probably just sit around all day, drink tea, and spout Trotsky as nonsense and criticize me. Let’s make them really work. Let’s assess them all the time. Let’s test them. Let’s make things more quantitative. I think that’s been a more general trend, and this is what this for short-end authoritarian populist attack can also benefit from, that there’s already framing that says, “Oh, there’s maybe something problematic about professions. Maybe what they say, the authority they claim on the basis of special kinds of education isn’t quite what it claims to be.” I think we shouldn’t stretch the point too far, but I would say there is something there that goes beyond lawyers in particular and that also goes beyond some of the specific attacks on certain professions that we’ve seen in our day.

Madhav Khosla:

Terrific, Jan. And in a way, I guess you see... Climate is a great example. And I suppose in the US, another example that is very much in the news today is the medical profession and the attacks on certain forms of science basically. And David, just to focus a little bit on the relationship between expertise, knowledge, and the professions, one of the things in your work that’s been very significant is that you’ve thought a lot about the role of judges in Apartheid South Africa, in Nazi Germany, and even in contemporary moments post-9/11. And of course, judges are professionals. They’re public officials, but they’re also professionals and they’re lawyers. And I was wondering if in that entire narrative, what account you have of actually the role that lawyers should play and even some of the conflict actually that some lawyers face, which is that participating in the system is itself a form of legitimation, not participating in the system is a form of exit.

David Dyzenhaus:

So let me start with an anecdote about the professions, and it goes back to the time of Blair joining Bush in the war against Iraq. And as many people will remember, at the time Blair goes to his Attorney General, Lord Goldsmith, and asks him for a legal opinion about whether joining Bush will be legal under international law. And he doesn’t get the opinion that he wants from Goldsmith, so he says, “Go back and try again.”

And Goldsmith comes up with an opinion which says, “Well, it’s fine for you to go to war with Bush because international law sanctions this.”

And one of the most senior people in his department then resigns in a rather infamous affair. This willingness to bend the law, and in a way, I think bend the law out of all recognition in response to political demands is, I think, a feature of our current situation. It’s interesting when one reads commentary in the US media about US court decisions. Nowadays, journalists will always say whether the judge who decided a matter is a Trump-appointed judge or a Bush-appointed judge or an Obama-appointed judge. And it’s always emphasized when a Bush-appointed judge, and even more when it’s a Trump appointed judge, gives a judgment that goes against the wishes of the current administration because I think what’s being pointed out in this emphasis is that here we have a judge whose sense of professionalism transcends their perhaps political commitments. And what one gets I think in the current climate is a collapse of professionalism into political commitments. And with that collapse, I think the idea of the profession goes no longer has the idea of people occupying a role. They just become the servants of their political masters.

Madhav Khosla:

On that, if I may push you ever so slightly, I think implicit in your account is that arguments have a certain integrity to them or they should have a certain integrity to them. And your forthcoming book has a very sharp title, it’s called The War Against Law. And what would we say to those who say that, look, actually what you describe as an argument that undermines the rule of law or unprofessional behavior that instrumentalizes how certain people behave is simply a legitimate conservative legal argument. It’s just one that you disagree with.

David Dyzenhaus:

Of course, I will run into and have run into that accusation. My response to it is that I don’t see anything particularly conservative about the arguments that I’m trying to rebut in this book. In the book, I make the claim and I think it is a claim that I sustain that there’s something that I call a fake legal argument. And what is a fake legal argument? A fake legal argument on my account has two characteristics. On the one hand, it’s an argument that’s designed to subvert the rule of law.

So the end goal is to subvert the rule of law, but it’s also the case that using legal arguments to get to this goal displays a certain characteristic which I try to expose in the book and that is that the arguments are legally speaking bad. The lawyers who make them I think often have to misrepresent the law, make inaccurate statements about the law in order to try to achieve their goal. So I don’t think that I’m contesting conservative legal positions. I’m contesting right-wing positions that are not really in any way seeking to uphold the law, or making sincere arguments about what the law requires.

Madhav Khosla:

Jan, in your critique of common good constitutionalism, you explore the project at different levels, at the level of general theory, at the level of institutional design, and at the level of US constitutional argument, and at the level of specific policy positions. And can you tell us just a little bit about what those levels mean and how they actually help us understand the theory and theories like this?

Jan-Werner Müller:

Allow me to say two things. So one is that in his, to put it mildly, consciously provocative way, Professor Vermeule, of course, is making all kinds of remarks about don’t think that democracy is that special, and that democracy is not really required by common good constitutionalism, but then takes it back at the same time by saying, “Well, there still needs to be a channel for meaningful input and feedback by the population, but it doesn’t have to look like what we conventional thinkers that we are bound to the present as we are think of as our standard institutions of representative democracy.”

So there’s all this conscious playing with, okay, maybe a different institutional configuration could be perfectly possible. Maybe even as the case in one of the texts in a very obscure publication, maybe even the fantasy of the good emperor who basically unites with the people against the inevitably nefarious liberal elites who are all corrupt, et cetera, could be a good solution.

So I think on the one hand, it’d be too simple to say, “Oh, this automatically implies what we might think of as authoritarianism on the institutional level.”

On the other hand, it’s pretty clear that Professor Vermeule tips his hand and say, “Look, I have certain preferences. If you have certain preferences, then actually all these other questions become sort of secondary in a certain way.”

And again, all our very conventional way of thinking about the dangers of concentrating power, the dangers of giving up entirely on some idea that democracy, of course not in practice, are last, but at least in theory, is the one system that promises citizens that, yeah, they should be treated as free and equal and they should regard each other as free and equal. All that goes by the wayside.

But the second thing I wanted to say as a footnote to what David just said is that I think it also opens the door, at least going to my impression, the current Supreme Court has often done, which is pretty arbitrary consequentialist reasoning, think of something like Trump v. Anderson, or sometimes just making up bits of 18th century history because it serves a particular agenda, or it gets you to the result that you want to get to. And I think if common good constitutionalism were implemented somehow, we would have a very similar scene in terms of, okay, we’ll just grab bits and pieces, we dress it up in the language of common good constitutionalism. And because it’s so vague in general, you can always tell a story about how this actually serves justice, abundance, and so on.

Madhav Khosla:

And in that account, I suppose it’s also very easy to dress that stuff up around lawyers, and for lawyers in some ways actually to construct that kind of illegal political project because one feature of being a lawyer is actually the capacity to be able to argue any case. And unlike some of the other professions, lawyers are trained to do that, which is I think partly why one sees in some of these historical examples, a genuine role for lawyers in these intellectual movements.

I was just wondering, when you think about the professions more generally, and one of the things, Jan, that I think people don’t really talk about is how one of Hitler’s first statutes actually involved regulating the bar and the significance actually for lawyers in that particular story. I was wondering if we could perhaps close by you and David both coming in really on how you drill down on actually what role lawyers have played in this and how that might actually tell us just something about the structure of them as a professional class.

David Dyzenhaus:

Let me make an attempt at answering that. And if one goes back to the context where I first started thinking about these issues, and that is Apartheid South Africa, I do think one sees a very interesting role played by lawyers over a long period because Apartheid lasted a long time. Initially, very few lawyers who were prepared to take the kind of cases that tried to use legal arguments to contest Apartheid policy. But these lawyers were able to keep an idea of the rule of law alive that I think provided an important basis for the post-Apartheid constitutional order. They maintained a basis for respect for the rule of law that otherwise would’ve been lost.

And the lessons from this period are not confined, of course, to Apartheid South Africa and referring to something you suggested earlier, Madhav, which I forgot to respond to, there’s a very interesting Israeli human rights lawyer called Michael Sfard, who’s written one of the best books, maybe the best book I’ve ever read about the dilemmas of lawyering under an unjust regime.

Sfard does a lot of his work in the occupied territories. And his view, which is inspired by the work of Apartheid-era human rights lawyers is that even when the odds are really stacked against one, one should use the law to contest the law because this is important for the regime that will hopefully replace the unjust regime that presently governs. And he recognizes fully, and I think that South African human rights lawyers recognize this as well, that through their participation, they do legitimize the regime, so that’s a cost that they have to think is worth bearing.

I don’t think that the situation is as dire in the United States now, and certainly not in the United Kingdom at present, but if one looks at work by lawyers who think about these issues in the United States, and probably most prominent here is the Georgetown Law Professor David Luban, one could see the same kind of dilemmas arising for lawyers, especially lawyers who stay on in the administration. So I’m sure that there are lawyers now in the US Department of Justice who are still wedded to an idea of the rule of law and are thinking to themselves, can we maintain that ideal of the rule of law under the conditions under which we presently work? So they are facing dilemmas that I think are not all that different from the dilemmas that lawyers faced in Apartheid South Africa, or that lawyers face in Israel and the occupied territories.

Madhav Khosla:

David, before I turn to Jan, just if I could just follow up on one thing that you said, do you have an account for what actually facilitated the internal cohesion within the legal profession during Apartheid South Africa? Because if actually lawyers were wedded to a certain notion of the rule of law and of their role within the legal profession, what enabled that kind of internal ethic?

David Dyzenhaus:

I think what enables it is that I think intrinsic to the rule of law is an ideal of equality before the law and this ideal can be a very formal, but as long as that’s preserved, I do think that lawyers will find within the law of their legal order resources which they can use to contest unjust laws to contest oppression to try to reign in discretion when too much discretion is given to officials to implement unjust policies. So there is something intrinsically worthwhile, I think, to the rule of law. And what one has to contest is the sometimes quite subtle and nuanced ways in which that ideally is being undermined these days by lawyers who use what looked like legal arguments to undermine the ideal.

Madhav Khosla:

Jan.

Jan-Werner Müller:

At the risk of simplifying radically, I think maybe one can distinguish two scenarios. One is, again, maybe somewhat more “traditional authoritarian regimes” where at least in theory, there might be somewhat more of a space to do what David just talked about in terms of staying within the system and trying to use the normative resources that law provides in order to call it what you wish, prevent the worst, save what can still be saved, but always against the background of a regime that perhaps might be primarily invested in projecting a certain image of stability in the way that many traditional authoritarian regimes did in also keeping up appearances vis-a-vis the outside world. Again, it will be up to people’s individual conscience when they find that, okay, but there’s still now a red line which I can’t cross and where I have to leave or do something different as opposed to second scenario where you see a much more radical approach.

And since for better or for words, we have occasionally been touching on Nazi Germany, one of the things one could clearly see also was at internal process of radicalization there. That all of a sudden someone like Schmitt who’d been very willing to go along with justifying a lot of what Hitler was doing in the 1930s sees himself outflanked by especially younger figures who say, “Well, this is still to behold to notions of the state. And the state is still too much of a liberal concept for us. And it’s still too closely wedded to the rule of law. We need something like for shorthand a sort of total biologization, total racialization of the social, completely folk-centered idea of the polity that dispenses with anything that could still smack of liberal legality.”

So I think one needs to bear in mind that some of these regimes might have a inbuilt process of radicalization, which cannot really be contained, and where one simply ends up providing a facade for a while, and then is being outflanked by people who are willing to go much further because the regime sees itself in many ways as unconstrained. And as David was saying, the situation in the United States now is complicated. Clearly, a lot of lawyers have left the administration saying that we just can’t do this. Plenty of lawyers are heroically fighting back against the administration, but it’s also clear that at least for some in the administration, there seem to be no real constraints and no real incentive to keep up facades.

And of course, at the risk of saying the obvious, that might partly be because in the background there is a very clear promise of impunity because the president has said, “I’ll be pardoning a lot of people. So why would you feel constrained? Why wouldn’t you simply say, I go all the way and I’m not concerned about keeping up appearances and I’m not even maybe concerned about post-Trump life in the profession or beyond the profession for that matter.”

Madhav Khosla:

And in a way, I suppose both January 6th and the subsequent events as well as the role that now politics plays in prosecutions only furthers and confirms that point. Jan and David, it’s been such a pleasure to have both of you and we are so grateful. Each of your work is unique in some sense because it’s inescapable for understanding the relationship between law and power in both this century and in the previous one and thank you so much for joining us.

David Dyzenhaus:

Thank you very much, Madhav, for having us.

Jan-Werner Müller:

Thank you very much indeed for having us.

Madhav Khosla:

And that’s it for this edition of Lawyering Without Law. Join us next time for our sixth and final episode, featuring a discussion on international law, accountability, and the future with Tom Dannenbaum and Asla Bâli.

Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote. Fact checking by Harriet Engelke and Arman Amin. Candace White is our Executive Producer. Our music comes from Envato Elements. The art for our show was designed by Jay Vollmar. Thanks to Jan-Werner Müller and David Dyzenhaus who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K, and follow us on social media.

Less than a week later, the agencies sent a letter to the university detailing a series of steps the Trump administration described as “a precondition for formal negotiations regarding Columbia University’s continued financial relationship with the United States government.” Those steps included changes to the university’s disciplinary and security policies and procedures, its definition of antisemitism, its admissions process, and its internal academic governance. Famously, this demand letter induced the university to enter into an agreement with the government to end these investigations and reinstate not only the $400 million in cancelled grants, but also to ensure Columbia’s access to billions of dollars in current and future grants.

The administration’s actions against Columbia were but the first salvo in a sustained campaign to coerce higher education institutions—including Harvard University, the University of Pennsylvania, Brown University, Cornell University, Northwestern University, UCLA, and the University of Virginia—into conforming their internal governance to the administration’s political priorities. In each instance, an essential source of leverage was the potential withdrawal of federal money under the auspices of Title VI, a federal civil rights statute that prohibits discrimination based on “race, color, or national origin” in “any program or activity receiving Federal financial assistance.” For many years prior to the Trump administration, many observers complained of federal intrusions into university governance under the auspices of Title IX, a cognate civil rights law that applies to sex discrimination in federally funded education programs and activities.

An irony of Title VI and Title IX is that, in a formal sense, these laws are weaker than many other federal civil rights statutes. Their prohibitions on race and sex discrimination operate, not through direct government regulation, but through contract. Neither law strictly mandates that any institution comply with its prohibitions—a recipient may instead choose to forego federal funding and thereby escape the obligations these laws otherwise impose. This enforcement structure distinguishes Title VI and Title IX from, for example, Title VII, an outright prohibition on employment discrimination based on race, sex, religion, or national origin, or the Americans with Disabilities Act, which directly prohibits discrimination on the basis of disability. Under our legal fictions, this direct effect makes the law stronger: a government obligation is more coercive than a choice.

The double irony, then, is that the way to make Title VI and Title IX less able to serve as instruments of authoritarianism would be to change them from choices into commands, at least when it comes to higher education institutions. Rather than tying limits on race or sex discrimination to federal funding, Congress could simply amend the law to say that no institution of higher education may lawfully discriminate on these grounds. Potential infractions could be enforced in just the same way they are now—through private rights of action and government enforcement via the Department of Education or the Department of Justice. The difference would be that, instead of a potential remedy of loss of all government financial assistance—a number that runs into the billions of dollars for large research universities such as Columbia and Harvard, but also, under Grove City College v. Bell,1 1. 465 U.S. 555 (1984). could potentially affect any school whose students receive federal financial aid2 2. Congress clarified in 1987 that the anti-discrimination coverage of Title VI and Title IX is institution-wide, but the remedy of funding withdrawal remains “limited in its effect to the particular program, or part thereof” found to be out of compliance. 42 U.S.C. § 2000d-1; 20 U.S.C. § 1682. Given the historical lack of actual funding withdrawals, the precise application of this targeting provision remains ambiguous.—the available remedy would be actual (or statutory) damages or a tailored injunction, just as law usually works. Congress could also create a table of administrative fines tailored to the severity of the violation, which would enable administrative enforcement to continue, but in a far more proportionate way than it does now.

There is no legal obstacle to Title VI and Title IX being structured in this way. The constitutional authority for doing so would be based on the Commerce Clause (and, for public institutions, section five of the Fourteenth Amendment) rather than, as now, on the General Welfare Clause. To bring colleges and universities safely within Congress’s constitutional power, it would be prudent to add a “jurisdictional hook” that applied the prohibition only to institutions with educational programs “affecting interstate commerce,” the same caveat that attaches to the Civil Rights Act’s outright prohibitions on discrimination in public accommodations (Title II) and employment (Title VII). Since higher educational institutions typically pull students and faculty from across state and national borders and send their graduates around the country, this qualification would be easily satisfied in all but the most unusual of cases.

The original structure of Title VI may well have been a concession to federalism. The law was designed to create a federal remedy, beyond litigation, to combat school segregation in the Deep South. So far as I can determine, direct statutory regulation of Southern schools wasn’t even on the table; it would have been widely considered an intrusion on local political control and would have made passage of the Civil Rights Act of 1964 even more difficult than it was. Title IX was modeled on Title VI.

This federalism concern is far less acute, and the coercive effect of federal funding withdrawal far greater, in the context of modern universities. Such universities are often selective, have voluntary enrollments, and operate largely autonomous of local political control over their governance. And as we have seen, the threat of a funding withdrawal can mean, not just the loss of a budget line or a threat to a single program, but a death sentence for much of the university’s scientific research and a serious blow to its affordability, and thus to its livelihood. More money, The Notorious B.I.G. reminds us, more problems.

There is little reason to think converting Title VI and Title IX into direct prohibitions policed through damages, tailored injunctions, and more proportionate administrative enforcement would make colleges and universities any more or less discriminatory, or indifferent to peer-to-peer discrimination, than they are now. Until the second Trump administration, withdrawal of federal financial assistance was not used as an actual remedy in Title VI or Title IX enforcement. The main difference would be that the federal government would no longer be able to use the downstream possibility of this draconian and disproportionate remedy as an in terrorem device to coerce institutions into conformity with a particular administration’s broader political agenda. President Kennedy anticipated this concern. In rejecting the recommendation of the U.S. Commission on Civil Rights that federal funds be denied statewide to states that did not desegregate their schools (a far worse offense than the typical modern Title VI complaint), he said, “I would think it would probably be unwise to give the president of the United States that kind of power.”3 3. See Stephen C. Halpern, On the Limits of the Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act 25 (1995).

Title VI and Title IX are not, of course, the only sources of leverage governments exert over universities. An administration may threaten current or future funding streams on other statutory or contractual grounds, each of which must be addressed on their own terms. But ending the vague and unnecessary tying of the salutary prohibition on race and sex discrimination in higher education to the receipt of federal funding would go a long way toward removing a loaded gun from the hands of a wayward government.

The degree to which these institutions impact the autonomy of knowledge producers is largely determined by the preferences of the staff and its leadership. For NSC and DPC, the source of their power is the extent to which they are able to initiate policy unquestioned by the president, organize the executive branch around them, and ultimately push paper in front of the president for a decision. For OMB, the opportunity to set administration policy is far greater. Not only does OMB control budget submissions to Congress and dole money out to the agencies, it also determines which regulations may move forward, controls what information may be collected from the public, coordinates the points made by agencies which are presented to Congress, writes the rules governing procurement, and more.

In the current administration, this power manifests in OMB’s ability to define what money agencies may spend and the rules which govern who may receive money from the government. In previous administrations, OMB’s power over institutions of higher education also involved defining how agencies should regulate universities through updates to the Code of Federal Regulations (especially 2 CFR 200) and information collections related to things like research security. In fact, just a day after this paper’s initial submission, OMB Director Russell Vought released a sweeping update, transforming the guidance into a regulation, in one of the most egregious executive threats to institutional autonomy in this country’s history.

To offer an example from the previous administration, when designing research security requirements for universities, it was understood that it would be impossible for agencies to create a single set of uniform requirements across all government agencies without placing significant additional burden on academic institutions. The requirement was implemented through an information collection, requiring that an academic institution attest that they have a research security program with a defined set of characteristics. While in practice, OMB’s involvement was to limit divergence between agencies, agencies still had latitude to determine their own requirements. These rules can have dramatic impact on the operations of universities and knowledge centers as they contort themselves to comply in order to receive federal funds.

When the current administration arrived, the deference afforded to agencies completely evaporated. OMB started to use their control of both budgets and process coordination to bully agencies (and even individual offices within them) into submission. In my previous office, this included withdrawing money from the agency’s account with no notice overnight. For universities and academic institutions, the impact is being felt with respect to OMB’s control over agency apportionments, defining which “notices of funding opportunities” may be posted by agencies, and the dramatic assertion of regulatory authority over all federal financial assistance, twisting both empirical reality and established law in the process.

Much of the power concentration in OMB is relatively new, emerging over the course of the last 40 years. The justification for placing that much power in a single nerve center in the federal government was to reign in sprawling requirements placed on the public across the U.S. government and to try to get the expanding government to speak with one voice. In practice, that power has been easily exploited, allowing OMB to exercise substantial power over government activities, including with respect to defining which projects get to be funded and which do not.

It is understandable why the U.S. government, with our national debt and ballooning deficit, should have a body that attempts to get a handle on agency spending and reign it in. But given OMB’s institutional weaponization, particularly with the targeting of research institutions like the National Center for Atmospheric Research (over which it has no actual authority), it’s worth considering whether OMB should continue to exist in its current form. To offer an even more extreme example, a young political OMB examiner with zero relevant experience probably shouldn’t be able to veto congressional intent, the collective urging of the interagency, feedback from entire industries, and U.S. treaty obligations with respect to whether space should be a safe operating environment. In theory, such decisions should be the responsibility of Senate-confirmed principal officers assigned to lead their respective organizations. Russell Vought should not have a say over whether the National Academies of Science, Engineering, and Medicine should continue to exist as an institution.

The concentration of power in OMB has always been suboptimal. Agencies have long been unable to request the resources they need, treating things like basic safety standards in laboratories as subordinate to flashy announcements while operating under a false pretense of fiscal responsibility. For reasons like this, the president’s budget request has long been viewed as a “dead on arrival" political document, leaving one to wonder what meaningful role OMB’s involvement actually serves. It would be far better for agencies to communicate their needs directly to Congress, have appropriators reckon with the actual cost to run the U.S. government, and in doing so increase public accountability and oversight over executive branch functions.

Most frightening: I have already heard former colleagues contemplate similar exercises of power in future administrations, including one verbatim “a lot of companies and Dems might like the idea of a trillion-dollar slush fund.” I would urge them to reconsider and urge for the dismantling of the tools that might allow them to do so. “Sulla could do it, shall I not?” must not be the undoing of another great republic.

Any attempt to regain some semblance of institutional autonomy over knowledge production in the United States will require dismantling the coercive power structures undermining fundamental freedoms. This will inherently require dismantling some of the more centralized executive functions, transferring them back to the legislature (who are more direct representatives of the people), and granting agencies the autonomy they need to effectively carry out their respective missions. Decentralizing power in the federal government may inherently carry the burden of greater governmental reorganization and internal realignment, but it is a worthy price to pay for the preservation of our democracy.

If it were up to McClatchy, CSA-generated articles would carry human reporters’ bylines. Kathy Vetter, the chief of staff, said during a March 17 meeting that “If [journalists] don’t have the ability in their contract to remove their byline, we’re going to use their name.” Why does McClatchy want human journalist bylines instead of running the CSA stories under a generic credit? Because they want the legitimacy that comes from marking such content as human. Eric Nelson, vice president of local news, said human bylines on the CSA stories was a way to show “authority” on Google so the articles would be ranked higher in the search engine’s results. Now, journalists at several McClatchy newspapers are engaged in a byline strike. They argue that the use of the CSA material amounts to an ethical breach that undermines the trust between local newsrooms and the communities they serve.

The McClatchy fight illustrates how AI accelerates and combines two challenges that the information ecosystem was already facing.

The first is what I call the Cylon problem.1 1. For the reader who has not seen the (excellent) television series “Battlestar Gallactica,” the Cylons are a cybernetic race. Much of the series’ early dramatic arcs and plotlines turn on the inability of human characters to detect whether another character is a human or a Cylon. Simply put, one can never be quite sure whether a person or a piece of content one encounters online (and increasingly offline) is real or fake.2 2. Fake is a deliberately provocative label. There are many ways that online content or interactions can be fake. There are bots and AI agents and the content they produce and the conversations they have with people and other bots and AI agents. There are human spammers and human-seeming accounts run by marketing firms. There are influencers that farm engagement by training other would-be influencers in how to make AI influencers to produce automated streams of content in a pyramid scheme of fakery. There are humans who have become reliant on AI for their interactions with other humans, AI summaries of real books sold as the book itself, and AI-assisted video and image clippers that steal real content. For a more extensive list of AI fakery from which my list is cribbed, see https://www.404media.co/your-ai-use-is-breaking-my-brain/. On clippers especially, see Mia Sato, The clippening, https://www.theverge.com/report/920005/social-media-clipping-podcasts-clavicular-marketing-mrbeast. The persistent possibility that anything or anyone one encounters could be fake cultivates a constant state of interpretive suspicion, a paranoid style of online (a)sociality.3 3. This is a riff on Richard Hofstadter, the Paranoid Style in American Politics (1965). It also creates a second order dynamic where the real is constantly at risk of being undermined by the fake. The real is falsely accused of or negligently labeled as fake, it is imitated to death by the fake, and the real is drowned out by the fake. The Cylon problem predates AI, but AI intensifies the problem along both qualitative and quantitative dimensions. High quality fakery can now be produced at scale and on the cheap. Unscrupulous actors can mass-produce slop and engagement bait. They can also level (at least facially) credible accusations of fakery to discredit opponents. The Cylon problem accelerates the downward swirl of epistemic destabilization that the shift from traditional to online media had already kicked off. Left unchecked it produces what Jason Koebler calls the “zombie internet.”

The second challenge is concentrated informational power. AI doesn’t just empower fakers and fakery in horizontal competition with journalists, artists, and other knowledge producers. Cheap, high-quality fakes waiting in the wings threaten workers in their vertical relationships with bosses in newsrooms, studios, or universities. Like prior forms of automation, AI replaces labor with capital in production and thus offers a technological means of empowering capital at labor’s expense. The Miami Herald might employ a journalist, but McClatchy cannot own that journalist’s tacit knowledge of when to push a source, when to track a lead, and what cluster of facts form the heart of a story. The space of a journalist’s judgement, experience, instinct, and skill is also the space of her freedom and her power. An editor can impose some control but cannot tune how she wields her perspective and her skill in how a story gets told. But McClatchy can “own” the output of its CSA, and its AI can fine-tune its outputs along varying shades of emotional tone and perspective to precisely match the preferences of an editor (or an owner).

McClatchy is not alone in its push to supplement worker-made media with AI offerings. Universities have begun experimenting with feeding videos of course lectures from Canvas into AI systems to produce AI-built personalized courses without faculty knowledge or consent. Movie studios have pushed actors to consent to full-body scans and fights over digital replication and likeness were a major feature of the 2023 SAG-AFTRA negotiations. Startups have unveiled AI-generated podcasts.

In a general sense, the introduction of the CSA, and other AI tools like it, follows a well-worn playbook of automation as wage suppression. Step one: Rip off the knowledge labor encoded via stores of human content by scraping the internet and engaging in intensive worker surveillance. Step two: Volun-tell workers to engage with and refine AI products to make them of sufficient human-seeming quality.4 4. While some AI training and refining happens in-house, many AI models also rely on outsourced gig work provided by third parties like Mercor for human training and refining. See, e.g. https://nymag.com/intelligencer/article/white-collar-workers-training-ai.html; on the ubiquity of AI use being pushed onto workers, see https://nymag.com/intelligencer/article/ai-replacing-entry-level-jobs-gen-z-careers.html?utm_source=substack&utm_medium=email. Step three: Once the AI is sufficiently good at mimicking worker produced content, fire the workers or wield the threat of AI replacement to weaken worker standing.5 5. When workers help codify their work, they make it more vulnerable to downward wage pressure from automation. See https://www.dallasfed.org/research/economics/2026/0224. To a greater degree than past forms of automation, producing AI good enough to replace or disempower workers requires cooperation from those same workers, or at least workers in the same industry. The transformation of knowledge labor into AI capital is mediated via data that workers themselves generate while doing their jobs. Indeed, steps one and two describe how data encodes the worker’s own knowledge, rendering it legible to AI systems that can then replicate the worker’s expertise.

**

Evidence suggests that many people do not like navigating the Cylon problem. Take music for example. A poll by The Hollywood Reporter and the Frost School of Music found that 66 percent of people have never knowingly listened to music generated by AI. This dislike of AI music also shows up in revealed preference. At the streaming platform Deezer, while there are 75,000 daily uploads of AI music, a number that “threaten[s] to overtake actual human-made music,” Deezer’s director of research notes that on the listener side, growth is mostly in fraudulent streams, and that “consumption after fraud removal is not gaining much traction and is still very concentrated on a few viral tracks.” Indeed, fraudulent streams of AI music make up an increasing proportion of AI music streams overall, suggesting that growth in AI music streams comes from fraudulent streams that have succeeded in beating listeners at the Cylon problem. Beyond music, when a production company debuted Tilly Norwood, the first AI-generated actress, it faced overwhelming backlash and condemnation across the film industry. A recent survey found that among professional visual artists, 99 percent of artists “disliked” generative AI. Familiarity seems to breed contempt; 85 percent of respondents said they abstained from using generative AI in their work, even though a majority encountered generated AI images at least weekly in their practice.

Indeed, a recent Pew Research Center poll found Americans are overwhelmingly more concerned than excited about the increased use of AI in daily life. Opinion tracks a distinction in how AI is used. As an information synthesis and detection technology embedded in finance, weather modeling, and fraud detection, people are broadly in favor of at least some AI use.6 6. This approach of AI as “infrastructural” also tracks how AI has been deployed in China, where AI adoption is regulated and has not sparked the same degree of backlash. See https://www.nytimes.com/2026/05/09/opinion/ai-china-america-race.html. People are overwhelmingly opposed to AI when it replaces human advice regarding issues people consider personal and more subjective, such as advising people about faith or relationships. To be clear, this is not to say that all people are against engaging with AI. But it is to suggest that many people are engaging with AI more than they would prefer, especially when such engagement is with AI agents or content that actively presents as human or human-made.

**

A range of possible interventions could alleviate key elements of the Cylon problem and its accelerating effect on informational power consolidation.

First, jurisdictions could extend existing fraud and misrepresentation doctrines to include corporate practices that intentionally or negligently mislead customers regarding a basic assumption underlying the commercial interaction—that customers are spending their valuable and finite time, attention, or money on human-produced content or speaking with a human agent.

Second, extending the same justifications that ground affirmative disclosure requirements under contract and consumer protection law, jurisdictions can pass legislation to require clear labeling of AI-generated content and disclosure of AI agents. Some entities, like Spotify and The New York Times, are already voluntarily developing practices to label AI content and disclose how AI was used in the creation process. These voluntary schemes are laudable. They help consumers make informed choices about what content they choose to consume. However, absent market-wide requirements for disclosure, companies may face structural incentives to underinvest in voluntary standards.

Underinvestment seems likely due to a combination of several factors. First, there is a large market for genuinely human content and human interaction that is (in theory) more expensive to produce. Given how cheap it is to imitate humans and human content, and how desirable human content or interactions are, there is a sizable incentive to pass off AI content as human. This, in effect, encourages business practices that deceive consumers into paying (either financially or with their time and attention) for content they have expressed a wish not to consume. In theory, such behavior would be disciplined by consumer demand and choice—customers, faced with options between human content and services and Cylon content and services, can reward the companies that invest in producing the content and services they like. But the very nature of the Cylon problem is that the risk of customer detection of AI is low. Thus, even well-meaning companies may face market incentives that reduce labeling practices into “humanwashing.” Companies can get a reputational boost from supporting human creators by announcing labeling practices—but will not face sufficient market discipline from consumers to adequately invest in the ongoing enforcement required to substantially prevent consumers from engaging with fraudulent AI.

In contract settings, many jurisdictions impose affirmative disclosure obligations on the party best positioned to efficiently identify a latent defect that is considerably more difficult (i.e., more costly) or impossible for the other party to discover. This maps nicely onto the Cylon problem. It is difficult if not impossible for consumers to detect if the content they are consuming or agent they are speaking to is AI but readily known by the company generating the content or hosting the agent. Rather than forcing consumers to engage in expensive (and often inaccurate) AI detection to obtain information the company already has, affirmative disclosure ensures efficient information sharing between the parties.

One common counterargument to the Cylon problem is to reject that it describes a problem at all. If consumers can’t tell the difference, the argument goes, then why should it matter if content is AI or human? This objection is odd given the prevailing tendency of commercial legal regimes to center consumer sovereignty and demand-led market incentives. Ours is not to question why consumers want to know if food contains GMOs, or if supply chains contain child labor, or if products are American made. If these are salient and material consumer demands, then we ought to facilitate market conditions that reward companies that invest in honestly and fully meeting those demands. The same goes for human content.

Of course, AI disclosure obligations—and even more so, claims that holding out AI-generated work as human work constitute fraudulent or negligent misrepresentation—exist in tension with the maximalist free expression positions that newsrooms have historically adopted regarding other disclosure obligations. In The Washington Post v. McManus for example, the U.S. Court of Appeals for the Fourth Circuit struck down a Maryland law requiring newspapers to disclose political advertising on First Amendment grounds. However, that law was content based—it regulated campaign related speech only—and it targeted political speech. Maryland’s law also implicated The Washington Post’s editorial discretion, since media outlets’ advertising choices receive First Amendment protections. Disclosing that an article was generated in whole or part by AI is not specific to the content of that article, nor does it target political speech. Insofar as it restrains editorial decisions, it does so narrowly, to disallow the deliberate misrepresentation of the nature of journalistic content to audiences.

To be clear, disclosure obligations may not resolve, or even apply to, every kind of AI Cylon problem. Overly ambitious AI misrepresentation or disclosure laws may run afoul of First Amendment challenges. Misrepresentation and affirmative disclosure frameworks govern speech within commercial exchanges; the burdens they place on speech are grounded in deep justifications regarding the centrality of commercial speech to contracting activity. AI content that does not implicate or involve a contractual relationship with the entity providing the speech, especially if such speech is political or entertainment, will have stronger First Amendment protections against mandatory labeling or disclosure.

Disclosure proposals focus on the demand side. The basic idea is that clearly demarking human content will relieve both horizontal and vertical pressure on human creators. If newsrooms are adequately rewarded for not replacing humans, they will face less market pressure to do so. If it becomes expensive and risky to lie to your customers about your “live booking agent” being AI, the cost savings of replacing humans with AI are reduced.

But reform proposals on the supply side exist too. Indeed, such proposals may offer a more enduring pathway to broader reform. Data association rights for content and knowledge producers would give data producers greater control over if, when, and how their data mediates the transformation of knowledge labor into AI capital.7 7. See also https://arxiv.org/abs/2506.10272. It would give journalists, influencers, and workers not just a negative stake against the privacy invasions of surveillance, or a limited copyright claim against certain forms of expropriation. Instead, systematic data entitlement rights would give data producing communities meaningful control—over whether their knowledge is commodified for AI use at all, and if so, how they may fairly benefit from its value. To provide effective supply side counters to concentrated informational power, broad data entitlement rights are best understood as rights to form associations and bargaining units with similarly situated data producers, rather than more traditional individual entitlements over one’s data itself. As I and many others have argued, data governance rights work best when collectively exercised via associations, rather than via individuals. Granting creative or workers associations greater collective power to determine if, when, and how their data is used to produce AI capital would allow creators and knowledge producers to assert control over how AI is produced and how its value is shared. Proposals for greater data entitlement have the additional benefit of largely avoiding (or at least minimizing) First Amendment challenges. Such proposals do not restrict or impose conditions on institutional speech; their intervention is upstream of any instance of expression. Instead, they expand the set of rightsholders that have a say in how corporate automated expression is produced to begin with, and who can claim a share of its value. Disclosure obligations and other demand-side reforms may provide a stop gap measure against an unchecked ecosystem of Cylons. But supply side interventions that distribute informational power more broadly are, in my view, necessary to achieve more enduring and significant reform.

The event focused on a provision of the Immigration and Nationality Act (INA) that the Trump administration has invoked against pro-Palestinian student protesters and has also used to target researchers and advocates whose work focuses on social media and online harms.

Nadine Farid Johnson, the Institute’s policy director, warned that each expanded application of the INA’s foreign policy provision functions as a kind of trial balloon. “It’s meant to inure us to the ever-growing effort that is being made to control speech, to control protest, to control association, and to control dissent,” she said.

Speaking at the briefing, Mahdawi said, “The issue is at the core of the Constitution of this country. And if it’s not addressed properly … I’m imagining that the DNA of this country would be changed."

Institute attorneys Carrie DeCell and Xiangnong (George) Wang took part in the congressional briefing, discussing the Institute’s lawsuits in American Association of University Professors v. Rubio and Coalition for Independent Technology Research v. Rubio. The cases challenge the administration’s use of immigration law to target noncitizens for First Amendment-protected activities. At the press conference, Sen. Van Hollen highlighted the words of Judge William G. Young of the U.S. District Court for the District of Massachusetts, who found in AAUP v. Rubio that the administration’s conduct was “not only unconstitutional, but a thing virtually unknown to our constitutional tradition.”

Ryan Morgan, policy fellow at the Institute, moderated the briefing and discussed congressional efforts to reform the INA. Together, the briefing and press conference underscored the danger of allowing immigration powers to become tools for suppressing protected expression. As Morgan noted, these policies often begin by targeting groups that are politically vulnerable, but “they don’t end there.”

The Land of the Free Act would repeal Section 237(a)(4)(C) of the INA. The legislation was introduced in the House by Rep. Deborah Ross (D-N.C.) and Rep. Becca Balint (D-Vt.) in August 2025, and Sen. Welch’s Senate bill is co-led with Sen. Alex Padilla (D-Calif.).

Watch the full press conference below.

In February 2025, JD Vance stood before an eminent crowd of European leaders in Munich and accused them of failing democracy and turning their backs on “Western” values. Claiming the mantle of free speech warrior, he dismissed disinformation as a “Soviet-era” word and presented far-right harassment of migrants as part of a legitimate public debate. “If American democracy can survive ten years of Greta Thunberg’s scolding,” he admonished, “you guys can survive a few months of Elon Musk.” It was an act of hypocrisy, of course, because even if Europe has room for improvement on free speech, the Trump administration itself was just beginning an unprecedented crackdown on domestic and global civil society. The claim to be free speech defenders is a fundamentally hollow one, a distraction, political signaling and ground laying. Designed and honed over many years, Trump, Vance, Musk and their allies in Congress, Silicon Valley, parts of the media, and Europe—especially Alternative for Germany, France’s National Rally, Reform UK, and Hungary’s recently ousted Fidesz—have self-interestedly defined the terms of free speech and used their narrative to try to protect themselves against claims of censorship, even after, for instance, the fiasco of Federal Communications Commission Chair Brendan Carr’s attempt to silence Jimmy Kimmel.

There is more to the populist free speech claim than hypocrisy. We should identify the narrative themes that thread through their rhetoric. In their absolutist world, speakers reign supreme, efforts against hate, disinformation and harassment constitute anti-democratic interference, content moderation is tyranny, and regulation of any sort means censorship. This framing, a key feature in the politics of populist parties globally, exploits weak civic and cultural understanding of the purposes of freedom of expression, seeking to undermine an information environment that should, if well designed and supported, promote knowledge and debate essential to democratic society. The framing is also deeply consequential, a foundational argument behind a range of destructive policies.

It is also wrong. Permit me a moment to advocate the human rights law framing of freedom of expression, the global free speech vernacular, rather than the domestic American one. The language of the First Amendment is, compared to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and about 170 other states, both categorical (Congress shall make no law) and linguistically narrow (abridging freedom of speech, or of the press).

By contrast, Article 19 provides that freedom of expression protects everyone’s right to “seek, receive and impart information and ideas of all kinds, regardless of frontiers,” through any media of one’s choice. Seek and receive, not just impart. It protects speakers and also audiences and listeners, the professional researcher and the recreational rabbit hole finder; it promotes the public’s rights to information, accountability, independent investigative journalism, education, and civic space for debate and culture. It demands that public authorities only adopt restrictions that meet strict tests of legality, necessity and proportionality, and legitimacy. Its precursor is the Universal Declaration of Human Rights, with its similarly worded Article 19, and its framework may be found in European and inter-American regional treaties and jurisprudence and in domestic constitutional law worldwide. The Article 19 framework is also the legal basis of sound regulation designed to protect and promote vulnerable communities, the right to vote, and democratic institutions. As an engine for innovation in business, science, technology and governance, a multidimensional freedom of expression is what separates the dynamism of democracies from the retrograde reality of repressive regimes.

As an alternative to the First Amendment, this framing of free speech rarely gets aired in political and popular discourse; it certainly isn’t central to any political agenda in the United States. Instead, the public gets a steady dose of one-sided arguments about free-speech-for-speakers from the very same politicians and officials who are clamping down on public debate and pluralistic media and consolidating the power of digital-age companies entwined with the state.

All of this argues for a process of reclamation of “free speech” for the public’s interest, not merely for the interests of companies, governments, or partisans. Every policy supporting an information environment that works for democracy—Big Tech transparency, guardrails on AI, vibrant public and independent media, active and unimpeded civil society organizations, efforts to address disinformation and hate, and so on—depends on the public, lawmakers, and the courts embracing not only the language of Article 19 but its underlying meaning and value. It’s a battle we are losing right now, with grave consequences for the future of democracy.

Reclamation should be a political and civic project. It requires that democratically minded leaders in government, culture, business and civil society make the case for a vision of “free speech” that both opposes censorship of any kind while also advocating other free speech values that benefit the public: pluralist media, public broadcasting, individual access to information (understanding access in all its meanings), tech transparency and competition, AI guardrails, and much else. Obviously, this will have to translate into legislative agendas as well, supported by a strategy of showing why investments in a healthy information ecosystem benefit individuals and their communities. But I believe we won’t make any progress if we fail to persuade the public that democracy depends on a broader way of thinking about free speech than currently on offer today.

Our purpose as a government, as a country, is to protect and advance human dignity under all situations. And human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

Katy Glenn Bass:

Hello and welcome to Lawyering Without Law, a podcast by the Knight First Amendment Institute where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country’s slide into authoritarianism. I’m Katy Glenn Bass. I’m the research director at the Knight First Amendment Institute, and you just heard a clip of our next guest, Alberto Mora, who we will introduce in just a minute. Joining me back on the podcast today is my co-host, Professor Madhav Khosla, the B.R. Ambedkar Professor of Indian Constitutional Law and professor of political science at Columbia University. He is also the Knight Institute senior fellow.

Madhav Khosla:

Hi, Katy. Great to be back on the show.

Katy Glenn Bass:

I’m glad you’re here.

Madhav Khosla:

Joining us today is Alberto Mora, who served as the General Counsel of the Navy during the George W. Bush administration.

Katy Glenn Bass:

After learning that detainees at Guantanamo Bay were being interrogated using practices widely considered to meet the legal definition of torture, Mora became one of the most prominent internal critics of the administration’s use of torture during the war on terror, arguing that these practices violated both US law and democratic values. In this conversation, we’ll talk about the fight against the use of torture after September 11th, the role that lawyers played during moments of national crisis, and what those debates can tell us about the present day.

Madhav Khosla:

Alberto, welcome to Lawyering Without Law.

Alberto Mora:

Thank you so much.

Madhav Khosla:

So to start off, can you tell us a little bit about your background, how you became involved in the debate over torture and interrogation policy inside the US government after 9/11?

Alberto Mora:

Well, by way of background, I think the first point to convey is that I’m the son of a Cuban father and Hungarian mother. I was born in Boston, but my father, who was studying postgraduate gastroenterology at Harvard Medical School, took his young family back to Cuba. So my first eight years, for all practical purposes, were in Havana and Pinar del Río, Cuba. The family supported the Castro revolution, thinking it to be a Democratic revolution, but soon thereafter, it was clear that it was not and the family then migrated to the United States. One year in Miami, then grade school and high school in Jackson, Mississippi, then off to college at Swarthmore.

And then into the State Department. That started a career that was both private sector and governmental in the George W. Bush administration. I was nominated and then confirmed to be the General Counsel of the Department of the Navy, so both the Navy and the Marine Corps. I assumed my responsibilities in the summer of 2001 was in the building when the aircraft hit the Pentagon on 9/11. And then my professional life changed, much like a lot of people’s lives changed after that day. I say my professional life changed because the team around the Navy Secretary, Gordon England, was selected really to redesign the business functioning of the department, make it more efficient. But then as soon as the aircraft hit, the country was at war and almost all of that work went out the window and we were focusing on fighting the war against terror.

Madhav Khosla:

And you had initially understood the Guantanamo interrogation program as a legal error that could hopefully and potentially be corrected through internal channels. When did you realize that that framing was inadequate and what did that reveal about how lawyers inside government understand the institutional role?

Alberto Mora:

Well, I actually had no understanding of the interrogation program at first. The interrogation and really detainee management and handling activities were classified as operational activities during the war, meaning that it was handled through military channels, really not through the Department of the Navy channels. The departments, all the military departments are entrusted with training, equipping, and then providing combat-ready forces to the combatant commanders who actually deploy the military. So I, as Navy General Counsel, had no involvement whatsoever, wasn’t even copied on correspondence or memoranda concerning anything dealing with the detainees, including the interrogation activities. I knew that detainees were being sent to Guantanamo. In fact, I was president in Guantanamo when the second flight load of detainees arrived and saw Camp X-Ray and how it was set up, which struck me as inadequate temporary facilities.

But the first time I got involved in interrogation would’ve been in November 2002, so more than a year after the 9/11 events, when an organization within the Department of the Navy, which I supervise, which is the Naval Criminal Investigative Service, they’re responsible for law enforcement, anti-terrorism, counter-espionage, counter-terrorism activities for the Navy, came to me and told me via the director of NCIS that they had been hearing rumors and had information concerning detainee abuse in Guantanamo. He wondered whether I wanted to get further involved in that. I did. NCIS came to me and told me what the basis of their suspicion was that detainees were being abused. They hadn’t seen it. They had not been present in any interrogation session, so they couldn’t verify it. But Guantanamo being a small place and people sharing work notes, the mess halls, the dormitories during recreation, they came to understand that one of the two task forces, the military task force responsible for obtaining intelligence information that could be used in military operations from the detainees, had been authorized and was using force to elicit the information.

NCIS went hunting further. They obtained, without permission, by the way, fragments of interrogation transcripts. And what they put together was a picture that untrained interrogators, mainly young with no language experience, no cultural experience, no interrogation experience, had been authorized to use force and the use of force was gradually increasing. NCIS was concerned that if the Guantanamo interrogation practices proceeded as the historical evidence shows globally, meaning that if force is authorized, then the level of force will continue to increase until they’ve reached the level of torture. They felt that that process was underway. It’s called force creep. And they felt that at Guantanamo, the interrogators may have already reached a level of torture.

When they finished the brief, I said I had heard nothing about this, but it really sounded like unauthorized unlawful activity was going on and I promised to look further. Two days later, I had in my hands the composite memorandum that was capped by a memorandum from the Department of Defense General Counsel Jim Haynes to Secretary of Defense, asking for authority to apply certain counter-resistance interrogation techniques to the detainees that included walling, potentially waterboarding, detainee-specific phobia techniques and other techniques that appeared as either clearly being in the realm of torture, such as waterboarding or potentially being waterboarding, depending on how they were applied to the individuals in question, either singly or in combination.

When I saw what had been requested by way of interrogation techniques, the absence of any competent legal memorandum associated with the legal authority for applying those techniques and the fact that the DoD General Counsel, with a consent of the chairman of the Joint Chiefs of Staff and the deputy Joint Chiefs of Staff, had submitted a request for approval of those techniques to Secretary Rumsfeld, Secretary Rumsfeld had approved them, I felt that this had confirmed what NCIS had feared and at least on paper, given the legal arguments and the interrogation techniques applied, that the interrogators might be certainly using cruel and inhuman and degrading treatment, but potentially had reached the level of torture at the time.

That was my initial set of understandings and my initial involvement with the entire procedure. I felt that this was entirely a mistake, meaning that had the attorney in Guantanamo, this is the Judge Advocate General for the Army that was a chief lawyer in Guantanamo, not written a memorandum that I thought was beyond their capabilities and I deemed as incompetent from a standpoint of accurately describing the legalities of interrogation in Guantanamo. That was approved by Southern Command in Miami, then sent up to the joint staff. The legal advisor to the chairman had not acted on the memorandum until the DoD General Counsel had gotten its hands on it and then he and the secretary approved it. Secretary approved it, I felt, because he had been relying on not only his general counsel, but four or five levels of lawyering before it had gotten to him. I felt the general counsel and certainly Secretary Rumsfeld were overwhelmed and not devoted sufficient time to read the memorandum and imagine what it could lead to. And so they’d missed the issue.

As soon as I got the memorandum, I went to see the DoD General Counsel, said, “Look, I’ve got this memorandum. I think it potentially authorizes torture.” He says, “No, it doesn’t.” And then I spent the next 45 minutes walking him through why I believe that easily the authorized techniques could lead to the torture. He listened to me as long as I cared to speak, but I felt that he immediately understood exactly the point I was making. I felt that because he had made a mistake, because I felt naively that no American lawyer, no senior government official would ever knowingly authorize the use of torture, that he would recognize his mistake and was certain that before I left his door to exit his office, he’d be calling Secretary Rumsfeld asking for the authorization to be withdrawn or suspended for the time being.

And I really didn’t think much about it. I thought the problem had been solved once the mistake had been pointed out. And about 10 days later, two weeks later, I was at my mother’s house near Miami, Florida in the pool when I got a phone call from the NCIS director, David Brant, saying, “Remember the problem we had talked about in Guantanamo, well, the problem is continuing.” And I was standing with a phone dripping wet and realized that while all of this had been a mistake, it was not inadvertent that people, who have been cautioned about the illegality of the activities, proceeded without changing. And I knew I’d had a different kind of problem than one of a simple legal mistake by an overworked attorney.

Katy Glenn Bass:

Thank you for sharing that history. So thinking about the way lawyers were understanding their institutional roles during that period, there were obviously a number of lawyers who were writing justifications for these interrogation practices. There were also lawyers like you and others inside the Department of Defense who believed that the program was unlawful and was inconsistent with American values. So how does this program continue in the face of internal opposition? What allows a large institution to act against what a lot of officials privately believe?

Alberto Mora:

That’s a question I’ve been posing myself for the last 25 years. I have yet to come to a satisfactory explanation how this came about. For those of us at my level, at the departmental level in the Department of Defense, and this is all the departments, Air Force, Army as well, we were not involved in the original lawyering. I wasn’t and I don’t believe the others were either. The Department of Defense General Counsel was involved. He was part of the inner circle of attorneys in the administration. That would include White House Counsel Alberto Gonzales, it would include the attorney general, it would include Vice President Cheney’s legal counsel at the time and a few others. State Department was not involved, for example. They were excluded from this. So there was a group of attorneys, probably less than 10, maybe even half of that, who understood the program. And as history later showed, the program was initiated by the CIA and taken to the White House into the attorney general’s office for recommendations to be enacted and then approved legally.

We had no understanding of that. It’s like the blind man touching the elephant. You see a portion of it, but you don’t see the totality of it. You don’t understand it. That’s what happened to me. I felt this was wholly homegrown in Guantanamo, it was mistakenly approved in DoD. I had no knowledge. In fact, I didn’t even suspect that National Security Council, attorney general, Office of Legal Counsel, White House Counsel had been involved in devising the program. I thought it was entirely a problem of the Department of Defense’s own making. It was only later actually until after Abu Ghraib that I got a fuller understanding of the entire dimensions of the program.

I don’t understand how this happened. I don’t understand how any single attorney, by looking at the paperwork, could not have understood that this was torture and it was illegal under any interpretation. But if I were to interpret what happened, I think the root cause is the fear and fury that the entire nation felt after 9/11, a fear that many more attacks would take place and many more Americans and other nationalities, residents in this country would die and the fury that this had happened and the determination to fight back against those responsible. I’m certain that the fear and fury distorted the mentality, the thought process, the lawyering process, most fundamentally, but certainly the values. And it went up from CIA and then they encountered attorneys both in the White House and the Department of Justice, principally John Yoo, who was a senior national security attorney in the Office of Legal Counsel. Very few other people at that level in the Department of Justice or at the White House had experience in international humanitarian law, laws of war. And so they were acting on the advice of a very few people who were sympathetic to the application of torture to these individuals.

Fundamentally, these attorneys thought that Al-Qaeda, through its barbarism, had opted out of the human race, individuals who, because they demonstrated their willingness and ability to kill and manifested their desire to kill many more, did not qualify for the ordinary legal protections or human rights protection that all individuals are entitled to. This was a mistake, a mistake on many different levels, but the failure to recognize the inherent right to be free from torture by individuals, including people of Al-Qaeda, they created a sham legal analysis that was not meant so much to provide an objective application of the law, but really more to create a get-out-of-jail card and legal immunity screen to protect those who recommended, designed, authorized, and implemented the program from ever being held responsible for having committed war crimes as it turns out. I believe that was the mechanism. They wanted the torture. They felt that the individuals who were targeted for torture had volunteered for that kind of treatment, and then they wanted to ensure that if anybody found out about the program, nobody would be held responsible for it. That was the internal, I think, locus, calculus. And then it filtered up through all these various departments and apparently nobody objected it until they got to me as far as I know. It’s shocking that that should have reached that level of permission at that point.

Katy Glenn Bass:

I agree with that. You spoke at the beginning of the episode about your own family history and your family’s roots in Hungary and in Cuba. Did that family history shape how you reacted to this program. And if so, how?

Alberto Mora:

Yes, absolutely. Both my parents and my mother twice had gone into exile. They had lost their family, their way of life, their language. You might come to the United States and have a very successful life and very comfortable life as my parents did, but nonetheless, you experience a type of suffering that is incurable by later success outside of your own homeland. My father, for example, was always Cuban, academic physician, did well financially, professionally, very credentialed, but he always felt Cuban and always felt that part of him was missing. What that taught me was the importance of politics, the important role of the United States in defending democracy and the rule of law. It taught me how comfort and security may be lost, and it pointed me unknowingly at first, but really in the direction of becoming a lawyer and becoming interested in American foreign policy and the role of the United States in the world. And that role I always felt was to defend democracy, defend human rights, defend the rule of law as the primary functions of American power globally.

Madhav Khosla:

So in 2016, you wrote a piece for Foreign Affairs emphasizing the strategic costs of torture, and that argument is sometimes read more through a pragmatic lens rather than through a moral one. And how do you understand the relationship between the strategic case and the moral case, and what’s your sense about which one perhaps proved more effective within government?

Alberto Mora:

So I’ve spoken to very accomplished academics who also served in government, including at the National Security Council. And they said that they never heard a discussion at the National Security Council as to what the right thing to do is. I mean, rather right thing, the moral thing to do was. There’d never been a discussion about morality at the National Security Council level, which takes us to a point worth noting that when the Bush administration approached the issue of torture, they only asked the question, “Can we do this?” Meaning they asked the legal question. They never asked the question, “Should we do it?” Which is why, as far as I know, and I think as far as the historic record now indicated, the National Security Council was never tasked with producing any memorandum as to the should question, “Should we use torture even if it were to be legally authorized to do so?"

I think had a pair of young staffers been given the weekend to put together a memo, they would’ve come up with 50 reasons why the United States should not engage in torture for foreign policy reasons, in addition to the legal and moral reasons as well. Unfortunately, the National Security Council on three occasions authorized the use of torture. And this is the full National Security Council, which included individuals like Colin Powell, who later told me personally that he regretted those choices that had he known what he was doing, what they were all doing, he never would’ve authorized the implementation of the enhanced interrogation program that the CIA was organizing.

So back to your question, I think as I thought about why the United States authorized torture and how it came about to do so, I felt that we had undervalued the policy reasons why torture should never have been implemented. And what I’m talking about there is that in reality, the United States is a construct of many ideas, but principally of certain values that are baked into the Constitution. We’ve organized our Constitution, we’ve organized our legal system, we’ve organized our system of governance in order to value and implement certain moral judgments, and at the heart of the moral judgments is the importance of human dignity. Our purpose as a government, as a country, is to protect and advance human dignity under all situations, and human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

And the Bush administration did not realize that by essentially taking the right to be free from torture out of the basket of inalienable personal rights, both under international law and under American constitutional rights, we were then diminishing this fear of rights not only globally, but also within our own country. We had transformed the right to be free from cruelty to a matter of policy discretion by government, meaning that no, it’s not a matter of rights, individual rights; it’s a matter for any government anywhere to decide when or how to use torture to advance whatever security objective or other national objective they may have. That severely impinges on human dignity.

What’s worse, as the enhanced interrogation program metastasized, meaning that the black sites were constructed in various different countries, many other countries were recruited to engage in the extradition programs through other countries, for example, Morocco, Egypt, Jordan, other countries and so forth. We were asking them to put aside their adherence to human rights and to their own laws prohibiting cruelty to individuals and adopting a new architecture of human rights, which severely diminished. So I think their policy considerations, and in fact, in one of the conversations I had with the Department of Defense General Counsel, I asked him the question, “Who decided that it was more important or more in the national interest for us to be able to torture half a dozen, two dozen individuals rather than continue to coherently espouse the advance of human rights across the world, which has brought such benefits to the United States and so many other countries for over 50 years?” And so, whether we knew it or not, it was a policy decision we had made that we would value the application of torture over coherent enforcement and expansion of human rights.

So that was one problem, one policy problem with the decision to use torture. But I also felt pretty clear that the rest of our allies in the war on torture, meaning all the European countries, where this kind of behavior was per se criminal activity on those countries, those countries would not support an American policy or revisions to the architecture of human rights, such as the United States was proposing. And their opposition to that would also mean necessarily that our ability to create an alliance, expand an alliance, and fight with an alliance that shared the same values would be compromised. So our efforts to fight terrorism would suffer militarily as a result of our mistake in using torture as a weapon of war.

So there are a number of reasons. And in fact, I think the policy consequences of the use of torture were severe, not only to ourselves, our rule of law, our constitutional values, and our purpose, but also to the global alliances that we had sought to expand and maintain as a key foreign policy focus since the end of World War II. And I had two interests leaving the Pentagon. One is that the Bush administration’s definition of torture, which essentially permitted, as one critic said, everything that Saddam Hussein had been doing in his own country under the OLC definitions of torture, that that definition not be changed, that we revert back to the standard international definition of what constituted extreme force. And the second was that we understand not only the legal consequences, the moral consequences of use of torture, but the policy consequences that would necessarily ensue if that kind of reasoning were to be adopted by the United States and other countries. So those were my principal objectives and concerns following from this experience in the Pentagon.

Katy Glenn Bass:

Thank you. So you challenged the torture program from within the administration, and I believe you stayed for several years. You left at the beginning of 2006, correct?

Alberto Mora:

Yes, that’s right.

Katy Glenn Bass:

So looking back now, do you think that staying inside was the right decision? And do you have any advice for lawyers within this administration who are weighing the trade-offs between dissenting internally and leaving and going public?

Alberto Mora:

I think decision to resign is a difficult decision, a complex decision. It has various different kinds of metrics. Ultimately, it’s a personal decision that falls back on one’s own sense of right and wrong. It will vary with every individual. And by the way, I never asked anybody in the Department of the Navy or in any other administration to do anything on this program because I understood that this could be career-limiting. I felt that as a political appointee, this was my job. This is the reason that you have political appointees to take action on decisions that might be politically convenient or could be career-ending for somebody who’s a career officer.

I sympathize and I understand that if you’re 20 years into a 30-year career as a civilian in the general counsel’s office in the Department of the Navy and you’ve got the proverbial kids in school and the mortgage to pay off, that you losing all of that, losing your retirement after 20 years of investment is a profoundly serious decision with profoundly serious impacts on one’s wife and children. And because I felt I could do this myself, I could raise the issue, confront the decision without necessarily involving others, I did that, but also recognizing an important element in the decision whether or not to stay in an administration or not stay in an administration.

I think, first of all, what happened with me is that most of this activity was done before Abu Ghraib. So we raised the issue, I was successful, and then I don’t mean to give myself the credit, because when I went around and talked to the other services, senior judge advocates, all of them agreed with my analysis. All of them agreed that this was unlawful, that the memoranda were incompetent, and that as a policy decision, as a military decision, the use of torture was profoundly counterproductive on many different levels. So after a relatively brief period of time, I’d say maybe two months or three months after the initial discovery of the torture, it wasn’t me that was working. It was a team, myself and all the other senior TJAGs that were advocating for the same position within the Pentagon. This was an achievement from the standpoint of attempting to counter the policy.

I went repeatedly back and indicated that I would have to write a written memorandum and put it in the file, send it to the DoD General Counsel, staking my position that the authorized techniques were torture. Secretary Rumsfeld rescinded the authorization to use those techniques in Guantanamo. And NCIS confirmed to me that the abusive interrogation at Guantanamo had stopped. This, to me, was a victory. I felt that common sense had finally prevailed. It took a while longer than we would have wished, but nonetheless, the Pentagon had come to see the reality that those interrogation techniques were neither legal nor wise.

Secretary Rumsfeld then ordered that we create what was called a working group to analyze the issue in much greater detail. That working group was then directed that they were to accept the Office of Legal Counsel’s memoranda on harsh interrogation techniques, which I certainly wouldn’t accept and it turned out the other JAGs would not accept as well. I informed the DoD General Counsel that I would not submit to OLC advice if this was going to be the advice that torture was authorized, and we would oppose or not concur with any working group recommendations that would rely on those memoranda.

The working group was disbanded, we thought, and no memorandum authorizing those techniques was ever authorized. So we had thought that we had won the debate concerning techniques, and I, and I don’t think anybody else among the senior JAGs, ever received any other indication that abuse was going on elsewhere outside of Guantanamo until Abu Ghraib. When Abu Ghraib exploded in the summer of 2004, I was astonished because I was wondering, how could this have happened? We had this discussion in the Pentagon, we had a decision, and so forth. And then of course then the disclosures about CIA involvement, Justice Department involvement, National Security Council involvement, the presidents and the vice president’s own involvement came out, and it became clear that what I had thought the problem was was a complete misreading. I was looking at only at a narrow corner of the issue, not at the entire picture.

President Bush threatened to veto Senator McCain’s Detainee Treatment Act legislation that would have prohibited the use of abuse by any government official directly or indirectly anywhere in the world. Had that happened successfully, I would have been obliged to resign from the administration, but because the veto did not prevail, the act came into place, there was significant progress at the senior levels in the military to oppose the use of torture and return to Geneva, I felt that my continuing the administration was warranted, but there could have come a time where had the administration prevailed on the torture issue, I would have had to resign out of principle.

Madhav Khosla:

Alberto, the lawyers most responsible for authorizing the torture program face little professional accountability. And how do you think that represented something to the next generation of government lawyers? What message did it send to them?

Alberto Mora:

I think that’s a matter that has been profoundly troubling throughout. I don’t understand how anybody responsible for authorizing and implementing torture could be any attorney involved in the process, could not but be sanctioned and possibly disbarred by their home bar association for having done so.

I think what’s happened is the torture program was a failure, a failure in the sense that it was counterproductive. It didn’t produce the intelligence that they hoped and was confident it would produce. The Senate torture report, by the way, I think conclusively demonstrates that as a policy matter, meaning torture did not work as it was advertised by the CIA supporters of the program to have worked in addition to being illegal, bad policy.

But the immunity program that was put in place, the immunity mechanism that the Department of Justice put in place has been strikingly successful. In addition to the fact that the politics of this were such that there probably would not have been a member of Congress that would’ve supported indicting those responsible for the torture program at any time between 2001 to the present time, and that would’ve been compounded by the fact that to have really held everybody who was responsible accountable, it would’ve meant holding the president, vice president, attorney general, national security advisor and a whole raft of lawyers as responsible and that simply would not have happened as a matter of politics in this country.

By the way, when I was in the Pentagon, I understood that there were two issues here. One was the legal standard and then the accountability issue. Those were the two primary legal issues when you talk about something like torture. There’s no law that actually would be worthy of the designation of law unless there’s accountability for its violation. But as I say that, I recognize, and I recognized this in the Pentagon, that for me to have raised the accountability issue at the very start would’ve changed the dynamic of the discussion completely because everybody associated with the program would’ve felt personally threatened and they would’ve been, and the discussion would not have changed as to what does a law provide about torture, but am I going to be liable or are my colleagues going to be liable and what are the political dimensions of this?

So I never raised accountability at first. My interest was ensuring that the international standard and the international definition of torture was upheld. But later, once that standard was more or less upheld, then the accountability issue reared up. And my hope is that as a result of our torture experience, the American public, the American national security leadership understand that were we to go back to a torture regime, there will be accountability next time around. That’s not a given; that’s a hope more than a legal certainty at this point.

But my belief is that the authorization of torture and the inability of our courts and political system, including congressional oversight, to hold those accountable for doing this has facilitated the slide down into the current situation where you see much greater illegalities being conducted in the administration. You see widespread cruelty as a feature of administration policy across a wide variety of fronts with very little appreciation to the fact that any application of cruelty to individuals under whatever guise, whether it be for military intelligence purposes or immigration law enforcement, is contrary to our values. And we seek, at all times, to build a world that is more protective of human dignity than one that is less protective of human dignity. And I think what we’ve seen in the trajectory between the Bush administration and the Trump administration is a slide down towards greater use of cruelty as governmental policy and less accountability for the same reasons that we didn’t hold people accountable in the Bush administration for having violated the law.

Katy Glenn Bass:

Yeah, I think that’s an important observation. So we have one last question for you in our few minutes remaining, which is turning to the work that you did after you left the Pentagon working on international rule of law programs through the American Bar Association. And I’m just wondering, from that vantage point, how do you see the pressures, how do you understand the pressures that are now being applied to lawyers and judges and institutions, like universities and law firms in the United States?

Alberto Mora:

Well, I had thought that my experience in the Bush administration was difficult, but it’s really has no degree of difficulty compared to what lawyers are experiencing now in the Trump administration. I and my colleagues in the JAG Corps would not have lasted half an hour in the Trump administration. Whatever one may say about the Bush administration, one can’t say that they attack lawyers personally the way that the Trump administration is attacking them now. Lawyers who believe, as I do, that the federal government is only authorized to do those things that it’s expressly allowed to do under federal law have not survived in the Trump administration. So you have a situation now is that to the extent that there are still individuals ... And of course, as you know, thousands have resigned from Department of Justice, but all the various different departments. Those individuals are probably not raising legal objections, not really working as lawyers as the way they should be.

So we have an immense threat to the rule of law in this country, an immense threat that comes from various different directions, including the Supreme Court decision Trump v. US that found that fundamentally a president is immune from being held responsible for illegalities while acting [inaudible 00:33:17] presidency. So under that analysis, where Trump to order the use of torture like George W. Bush did, then he most likely would not be held, could not be held liable, could not even be investigated for having committed torture. So my belief, stated starkly, is that the United States is a country that has a strong rule of law tradition, but it is not a country strictly speaking that is a rule-of-law country, simply because presidential immunity and its cascading effects throughout the administration then removes the president, the administration from the full ambit of accountability.

The American Bar Association gave me an extraordinary opportunity. When they selected me to be the director for global programs, it involved the directorship of the Rule of Law Initiative and then oversight of the human rights activities of the Bar Association. The Rule of Law Initiative had started towards the end of the Cold War, 1989, 1990 as the Berlin Wall was falling down, when individual American attorneys started going over to Eastern Europe primarily and volunteering their services to countries, rebuilding human rights, criminal laws, the judiciary prosecution functions, establishing defense bars, really reforming the entire legal systems of the country. The programs were extraordinarily successful in many countries. You go to a place like Georgia, for example, the country of Georgia, and they’ll tell you the American Bar Association was responsible for the Georgian Bar Association and regaining life and autonomy in that country. But the same can be true of many countries in the region and around the world.

I should mention that in my sense, before the growth of authoritarianism in this country and in other countries, like Hungary and other places, I saw as the greatest threat to the rule of law, the growth of corruption in all its senses, lots of countries in which the rule of law is significantly eroded through or extinguished through the use of corruption. I worked extensively in Guatemala, for example, where that was a country where the legislature, the law schools, the bar association, the courts, and even civil society were all under pressure from malign elements that essentially did not want the rule of law to function in their countries. And so what I was focusing on for my time there was how can the American Bar Association and the United States government and other governments, particularly in Europe, work together to help rescue countries that have been captured by malign elements? What’s the process? How do you chunk that mission? Where do you start? What are the forces that need to be applied, the theory?

And that continues to be a challenge. Even if authoritarianism weren’t an overriding challenge, the threat of corruption to legal systems and the rule of law are an immense problem that have been underanalyzed and not given sufficient importance in public policy, foreign policy.

Katy Glenn Bass:

That’s absolutely right. And unfortunately, I think that is increasingly going to be the case here, trying to disentangle the corruption from the breakdown of the rule of law.

Alberto, this has been a really fascinating and thoughtful discussion. Thank you so much for taking the time to come and speak with us. And also, I just want to add a personal note because I was in law school right around the time you had left the Pentagon. I started in 2006, and the fight over the torture program was really formative in both my undergrad and my law school years. It was why I went to law school. And I just want you to know that people like you who did stand up and who said, “This is wrong. This is both immoral, but it’s also unlawful,” you really meant an enormous amount to young law students like me and to the people that I went to school with. So thank you for the work that you did. It’s been a little awestruck talking to you just now. It’s been wonderful. Thank you.

Alberto Mora:

Katy, thank you so much for those kind words. I’m delighted to hear them.

Madhav Khosla:

Thanks so much for being with us, Alberto.

Katy Glenn Bass:

And that’s it for this episode of Lawyering Without Law. Join us next time for a conversation on the history of 20th century authoritarianism with David Deisenhouse and Jan-Werner Müller.

Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote, fact-checking by Harriet Engelke and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show is designed by Jay Volmar. Thanks to Alberto Mora who joined us for this episode.

Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org, that’s knight with a K, and follow us on social media. Bye for now.

In the first 16 months of his second term, Trump has leaned into this strategy even further, including by expelling the Associated Press from the White House press pool because it refused to call the Gulf of Mexico the “Gulf of America,” and by conditioning journalists’ access to the Pentagon on their signing a pledge that no self-respecting journalist would sign.

The First Amendment’s forum doctrine has served as a check on some of this. The courts restored the access of the journalists whom Trump expelled from White House grounds during his first term. The Knight Institute sued Trump over his practice of blocking critics from his Twitter account and won victories in the district court and court of appeals; the Supreme Court granted Trump’s cert petition but deemed it moot when former President Biden was inaugurated in January 2021. More recently, a district court sided with the AP in its challenge to its expulsion from the White House press pool, and another district court sided with The New York Times in its challenge to the policy restricting press access to the Pentagon. These rulings have helped protect the integrity of some of the forums in which speech important to our democracy takes place. They’ve limited the government’s ability to marginalize dissent and criticism, and they’ve impeded the government from transforming open forums into tools of propaganda.

But these lawsuits have also exposed the limitations of First Amendment litigation. There is sometimes uncertainty and disagreement about which spaces should be considered forums under the First Amendment. Enforcing the public forum doctrine in courts can take years, and the courts aren’t always willing or able to restore the status quo ante while litigation proceeds. For example, the Associated Press won a decisive victory in the district court but its access to the White House press pool hasn’t been fully restored, and meanwhile the Trump administration has appealed to the U.S. Court of Appeals for the District of Columbia Circuit. Also, government officials can subvert litigation victories by reshaping their policies without reforming them, which is essentially what the Pentagon did after The New York Times’ successful suit. (The Times recently filed a second complaint.) And while First Amendment doctrine imposes constraints on the government once a forum has been opened to the public, courts have been reluctant to impose on the government any obligation to make forums available in the first place (beyond the narrow category of “traditional” public forums), or to keep them open once they’ve been made available. As a result, news organizations and others have sometimes hesitated to sue over unconstitutional viewpoint discrimination out of fear that a victory might result in the government shutting down the forum altogether, which does sometimes happen.

Congress should step in to protect some of the public forums that are especially important to our democracy. It can do this by requiring the executive branch to maintain these forums and to respect a rule of viewpoint neutrality in regulating access to them. Congress should require the White House and every federal agency to dedicate government facilities to press pools whose membership is determined according to viewpoint-neutral criteria. It should require each agency to have senior officials take questions from the press pool on a regular basis. It should give members of the press pool the right to sue if they are excluded from a press pool on an impermissible basis, and it should provide for expedited judicial consideration of these suits. Congress could extend analogous statutory protection to public forums created by government officials’ and agencies’ social media accounts.

Congress has the authority to impose these mandates. Through the Freedom of Information Act and the Administrative Procedure Act—to take two of the most obvious examples—Congress has already mandated that the executive branch comply with rules meant to promote government transparency and accountability and an informed, democratically empowered public. The constitutionality of these statutes is well-settled. The mandates we have in mind would serve the same purposes and be predicated on the same congressional powers. Congress’s enumerated powers relating to the military would provide an additional basis for imposing these kinds of mandates on the Pentagon and the intelligence agencies. Article IV’s Property Clause would provide an additional basis for regulating social media accounts used by executive officials as extensions of their offices.

We think a requirement that agency officials take questions from statutorily mandated press pools would be on solid constitutional footing, too. Many provisions of federal law require executive officials to document their activities, prepare reports for Congress, and make various kinds of records available to the public. FOIA requires the government to disclose records in response to requests from the public—and that statute’s constitutionality is no longer seriously contested even by those who take the broadest view of executive power. Notably, FOIA requires the executive to share even records it would prefer not to share, whereas our proposed mandates would leave it to the executive to decide what to say in statutorily mandated forums. In that sense, at least, our proposed mandates are less intrusive than FOIA is.

Congress has the authority to impose these kinds of mandates on White House officials as well. It has already imposed record-keeping requirements on the president—that’s what the Presidential Records Act is all about—and those requirements are constitutional, as Judge Bates explained just a few weeks ago, writing “While the presidency is a singularly important institution, that gravity does not free it from modest constraint. Quite the opposite.” In reaffirming the constitutionality of the Presidential Records Act, Judge Bates observed that presidents had complied with the Act “without complaint” for 50 years. The White House press pool has an even longer history, and for more than 40 years its membership has been determined by the press itself, through the White House Correspondents’ Association. Article II should not be construed to bar Congress from requiring the president to respect and sustain an institution that plainly serves democratic interests and that presidents have respected and sustained “without complaint” for decades.

First Amendment doctrine isn’t enough, on its own, to prevent an administration that is committed to distorting expressive spaces that are important to our democracy from realizing its ambitions. We need legislation, too, including the kinds of mandates we describe here.

The following can be attributed to Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University:

“Judge Cannon’s justifications for permanently suppressing the Special Counsel’s report don’t withstand scrutiny. The report is a government record of profound public importance that must be released. The public has the right to see this report under the First Amendment, common law, and Freedom of Information Act. It’s that simple.”

Read today’s brief here.

Read more about the case here.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org

Now imagine Thaler turns his Creativity Machine to a different goal: electioneering. He abstractly instructs the Machine to autonomously generate, post, and A/B-test thousands of political attack messages across social platforms, optimizing for viral engagement. Thaler only sets a high-level goal to “take down all politicians who want to regulate AI” and the agentic system does the rest: including deciding who to target, what words, images, and videos to post, and which publications to select. A state legislature, alarmed at the scale of what’s coming, bans autonomous AI electioneering. Thaler sues again, this time claiming his Creativity Machine’s outputs are protected speech.

The two cases involve different legal doctrines. But they share a threshold question: When should the law protect machine-generated outputs that lack any meaningful human expressive contribution? Copyright law has spent nearly a decade working out an answer. First Amendment law has not.4 4. For more than a decade, scholars have debated various aspects of how the First Amendment should or should not address algorithmic/AI-generated content. See, e.g., Mike Ananny, Probably Speech, Maybe Free: Toward a Probabilistic Understanding of Online Expression and Platform Governance, Knight First Amend. Inst. (Aug. 21, 2019); Mackenzie Austin & Max Levy, Speech Certainty: Algorithmic Speech and the Limits of the First Amendment, 77 Stan. L. Rev. 1 (2025); Jack M. Balkin, Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation, 51 U.C. Davis L. Rev. 1149 (2018); Derek E. Bambauer & Mihai Surdeanu, Authorbots, 3 J. Free Speech L. 375 (2023); Stuart Minor Benjamin, Algorithms and Speech, 161 U. Pa. L. Rev. 1445 (2013); Dan L. Burk, Asemic Defamation, or, the Death of the AI Speaker, 22 First Amend. L. Rev. 189 (2024); James Grimmelmann, Speech Engines, 98 Minn. L. Rev. 868 (2014); Margot Kaminski, Authorship, Disrupted: AI Authors in Copyright and First Amendment Law, 51 U.C. Davis L. Rev. 589 (2017); Margot E. Kaminski & Meg Leta Jones, Constructing AI Speech, 133 Yale L.J.F. 1212 (2024); Madeline Lamo & Ryan Calo, Regulating Bot , 66 UCLA L. Rev. 988 (2019); Toni M. Massaro, Helen Norton & Margot E. Kaminski, Siri-ously 2.0: What Artificial Intelligence Reveals About the First Amendment, 101 Minn. L. Rev. 2481 (2017); Peter Salib, AI Outputs Are Not Protected Speech, 102 Wash. U. L. Rev. 83 (2024); Eugene Volokh, First Amendment Limits on AI Liability, Lawfare (Sept. 27, 2024); Eugene Volokh & Donald M. Falk, First Amendment Protection for Search Engine Search Results, 8 J.L. Econ. & Pol'y 883 (2012); Eugene Volokh, Mark A. Lemley & Peter Henderson, Freedom of Speech and AI Output, 3 J. Free Speech L. 651 (2023); Tim Wu, Is the First Amendment Obsolete?, Knight First Amend. Inst. (Sept. 1, 2017); Tim Wu, Machine Speech, 161 U. Pa. L. Rev. 1495 (2013). Could the Copyright Office’s approach to machine authorship offer a model for First Amendment doctrine, one that reins in agentic AI outputs and slop farms without chilling legitimate AI-assisted expression for humans?

Historically, the legal category of speech has never been stable. As Jennifer Petersen has documented, it has been actively remade with every new communication technology, from silent film to radio to computer code.5 5. See Jennifer Petersen, How Machines Came to Speak: Media Technologies and Freedom of Speech (Duke University Press 2022). Across those shifts, speech remained nominally tethered to human agency, but in an increasingly attenuated sense. Petersen calls this a move toward a “posthuman conception of speech,” where messages rather than persons become the locus of legal protection. That approach has already expanded corporate speech rights in ways many find troubling. Generative AI pushes the logic even further and leaves First Amendment doctrine without a clear account of who, if anyone, is speaking.

The First Amendment has generally dealt with human beings generating acts of protected expression.6 6. See Massaro et al., supra note 5 at 2487-90 (observing that First Amendment theory has historically presumed human speakers). Landmark cases from the Vietnam-era jacket in Cohen v. California to the civil rights defamation case in New York Times Co. v. Sullivan to the Klan’s cross-burning in Brandenburg v. Ohio, all centered on concerns about human choices to say specific things.7 7. See Cohen v. California, 403 U.S. 15, 16 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 256 (1964); Brandenburg v. Ohio, 395 U.S. 444, 445 (1969) (per curiam); Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 568 (1995). Even the corporate speech and right-to-listen cases, from Boston v. Bellotti to Citizens United v. the FEC and Martin v. City of Struthers through Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council to Sorrell v. IMS Health Inc., involved corporations as vehicles for human expressive decisions, with human audiences who were interested in listening to human speakers.8 8. See First Nat'l Bank of Bos. v. Bellotti, 435 U.S. 765, 777 (1978) (grounding corporate speech rights in the value of the speech to listeners and to "discussion, debate, and the dissemination of information and ideas"); Citizens United v. FEC, 558 U.S. 310, 349 (2010) (extending corporate speech protection on the rationale that "[t]he First Amendment does not allow political speech restrictions based on a speaker's corporate identity"); see also Moody v. NetChoice, LLC, 603 U.S. 707, 744 (2024) (Barrett, J., concurring) ("Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves."); Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights (2018) (tracing the historical development of corporate constitutional rights as derivative of the rights of the human beings who compose corporations). For the right-to-listen cases, see e.g., Martin v. City of Struthers, 319 U.S. 141 (1943); Lamont v. Postmaster Gen., 381 U.S. 301 (1965); Stanley v. Georgia, 394 U.S. 557 (1969); Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976); Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).

That premise is now under pressure. Generative AI produces content at scale that is increasingly disarticulated from human involvement.9 9. See, e.g., Tiffany Hsu, Hundreds of Fake Pro-Trump Avatars Emerge on Social Media, N.Y. Times (Apr. 17, 2026), https://www.nytimes.com/2026/04/17/business/media/artificial-intelligence-trump-social-media.html; Emanuel Maiberg, An AI Agent Was Banned from Creating Wikipedia Articles, Then Wrote Angry Blogs About Being Banned, 404 Media (Mar. 30, 2026), https://www.404media.co/an-ai-agent-was-banned-from-creating-wikipedia-articles-then-wrote-angry-blogs-about-being-banned/. Agentic systems coordinate tasks across platforms with minimal oversight.10 10. See Ardi Janjeva, Carolyn Ashurst & Rick Hennessy, Agentic AI in the Wild: Lessons from Moltbook and OpenClaw, CETaS Expert Analysis (Feb. 2026), https://cetas.turing.ac.uk/publications/agentic-ai-wild-lessons-moltbook-and-openclaw; Kai Nicol-Schwarz, From Clawdbot to Moltbot to OpenClaw: Meet the AI Agent Generating Buzz and Fear Globally, CNBC (Feb. 2, 2026), https://www.cnbc.com/2026/02/02/openclaw-open-source-ai-agent-rise-controversy-clawdbot-moltbot-moltbook.html; Cade Metz, A Social Network for A.I. Bots Only. No Humans Allowed, N.Y. Times (Feb. 2, 2026), https://www.nytimes.com/2026/02/02/technology/moltbook-ai-social-media.html. AI slop, or mass-produced synthetic content, is now the majority of new material posted to the open web.11 11. See Kate Crawford, Eating the Future: The Metabolic Logic of AI Slop, E-flux Journal (Sept. 2025), https://www.e-flux.com/architecture/intensification/6782975/eating-the-future-the-metabolic-logic-of-ai-slop. Aisha Down, More Than 20% of Videos Shown to New YouTube Users Are 'AI Slop', Study Finds, Guardian (Dec. 27, 2025), https://www.theguardian.com/technology/2025/dec/27/more-than-20-of-videos-shown-to-new-youtube-users-are-ai-slop-study-finds; Jason Miklian & Kristian Hoelscher, The Web Is Awash in AI Slop. Real Content Is for Subscribers Only, and Democracy Suffers, L.A. Times (Oct. 23, 2025), https://www.latimes.com/opinion/story/2025-10-23/ai-slop-democracy-paid-internet-content; Jonas Dolezal et al., The Impact of AI-Generated Text on the Internet, https://ai-on-the-internet.github.io (last visited Apr. 25, 2026); see also Joseph Cox, Google News Is Boosting Garbage AI-Generated Articles, 404 Media (Jan. 18, 2024), https://www.404media.co/google-news-is-boosting-garbage-ai-generated-articles/; Emanuel Maiberg, AI-Generated Slop Is Already in Your Public Library, 404 Media (Feb. 4, 2025), https://www.404media.co/ai-generated-slop-is-already-in-your-public-library-3/. If legislatures try to regulate this in the typical domains of electioneering, consumer protection, and defamation, they will likely face a wave of First Amendment challenges from AI developers and operators claiming their machines’ outputs are protected speech.12 12. See, e.g., Litigation Center, NetChoice, https://netchoice.org/litigation/ (last visited Apr. 25, 2026) (cataloguing more than twenty NetChoice lawsuits challenging state technology regulations); see Garcia v. Character Techs., Inc., No. 6:24-cv-01903; see also Exec. Order No. 14,365, Ensuring a National Policy Framework for Artificial Intelligence, 90 Fed. Reg. 58,499 (Dec. 11, 2025) (targeting litigation against state AI regulations under various theories including violations of the First Amendment). Call it slopigation: endlessly scaling litigation over AI content that no human directly expressed.

Without a threshold test asking whether any inherently human expressive contribution is present, courts have no principled way to sort protected speech from autonomous machine outputs. Courts would be mired in epistemologically complex and administratively unmanageable questions about whether agentic AI systems can be said to have viewpoints, and if so, whose they are. Worse, it could threaten to eliminate many forms of AI regulation.13 13. See infra notes 41-44 and accompanying text.

So what could be learned from the copyright approach?14 14. Both Margot Kaminski and Peter Salib have raised the potential connection between the authorial analyses in First Amendment and copyright law in works that predated Thaler. See Kaminski, Authorship, Disrupted, supra note 5 and Salib, supra note 5, at 125 n. 221. When confronted with a flood of AI-generated material, the Copyright Office developed a two-part threshold test.15 15. U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (Mar. 16, 2023) (“Guidance”), https://www.copyright.gov/ai/ai_policy_guidance.pdf; U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (2025) (“Report”), https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-2-Copyrightability-Report.pdf. The first factor evaluates the amount and type of human creative contribution. Here, the Copyright Office drew from a famous case of an 1882 photo shoot of Oscar Wilde, where Napoleon Sarony posed Wilde on a couch, dressed in dark velvet and silk stockings. A lithographic company later printed the image on trade cards without permission, claiming there was no copyright protection because the “author” of the image was a machine—the camera—not the human taking the photograph. The Supreme Court disagreed. Sarony had posed his subject “so as to present graceful outlines” and selected “costume, draperies, and other accessories.”16 16. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-60 (1884). A human who shapes a work as “the production of his own genius or intellect” is an author, while one who merely describes to a system what the work should do or look like is not.17 17. Report at 9 (quoting Burrow-Giles, 111 U.S. at 57-60 and citing Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1497 (D.C. Cir. 1988) (holding organization that provided detailed suggestions and directions to artist was not joint author) and Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132, 135-36 (3d Cir. 1991) (printer’s work did not rise to level of authorship because client expressly directed it on how to rescale and print a collection of maps in specific detail so that the final product “needed only simple transcription to achieve final tangible form.”)).

The second factor focuses on output predictability. The Copyright Office distinguishes tools that extend a human’s creative choices from systems that generate outputs the human could not have predicted from her input.18 18. Report at 19 (“The gaps between prompts and resulting outputs demonstrate that the user lacks control over the conversion of their ideas into fixed expression, and the system is largely responsible for determining the expressive elements in the output. In other words, prompts may reflect a user's mental conception or idea, but they do not control the way that idea is expressed.”), 20 (“The fact that identical prompts can generate multiple different outputs further indicates a lack of human control.”). A Photoshop paintbrush extends a human’s choice predictably. Generative AI produces outputs the human couldn’t have anticipated from her prompt. Predictability matters because it tracks the locus of expressive contribution: The more the output predictably flows from human choices, the more the human is the author. If the output is the system’s own unpredictable recombination, there’s no human authorship.19 19. Guidance at 4 (“For example, if a user instructs a text-generating technology to ‘write a poem about copyright law in the style of William Shakespeare,’ she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style. But the technology will decide the rhyming pattern, the words in each line, and the structure of the text. When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship. As a result, that material is not protected by copyright and must be disclaimed in a registration application.”)

How would these factors translate to a First Amendment context?20 20. To be clear, this proposal is not an attempt to conform to the “patently uncovered speech” framing Frederick Schauer defended in response to Genevieve Lakier’s critique of low-value speech doctrine. SeeFrederick Schauer, Out of Range: On Patently Uncovered Speech, 128 Harv. L. Rev. F. 346 (2015) (responding to Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166 (2015)). Schauer argued that some speech is “leagues away from the outer boundaries of plausible First Amendment coverage” and categorically uncovered. Lakier’s broader project, developed across subsequent work, has been skeptical of such categorical exclusions as invented traditions that smuggle value judgments into ostensibly neutral coverage determinations. See, e.g., Genevieve Lakier & Evelyn Douek, The First Amendment Problem of Stalking: Counterman, Stevens, and the Limits of History and Tradition, 113 Cal. L. Rev. 143 (2024). This proposal doesn’t treat machine-generated content as a low-value or out-of-range category of speech subject to differential treatment. It identifies a threshold predicate question: whether cognizable human expressive activity occurred at all. If not, then it is not “speech” in a Constitutional sense. Cf. Burk, Asemic Defamation, supra note 5. That is a different inquiry than the one Lakier critiques, and one that her own multi-dimensional approach arguably accommodates. Consider these four scenarios:

• A journalist drafts an op-ed and then uses AI to tighten prose, suggest headlines, and check grammar. She makes express creative contributions and uses the tool predictably. This passes the speaker threshold.
• An artist iterates across hundreds of prompts with unpredictable generative outputs, chooses between them and arranges them into a final composition. Express contribution flows through selection and arrangement rather than initial generation. In this case, only the selection and arrangement pass the speaker threshold.21 21. This parallels a recent copyright decision. See Kate Knibbs, How One Author Pushed the Limits of AI Copyright, Wired (Apr. 17, 2024), https://www.wired.com/story/the-us-copyright-office-loosens-up-a-little-on-ai/.
• A campaign operative deploys a swarm of autonomous agents to generate, post, and optimize thousands of message variants but makes no express contribution to any specific output, and the outputs are unpredictable from her high-level objective. This fails the speaker threshold.
• A “pink-slime” operation publishes hundreds of AI-generated articles per day with nominal human review.22 22. Pink-slime operations are partisan-funded outlets that mimic the form of independent local news while publishing low-cost, automated, or algorithmically generated content advancing undisclosed political or commercial interests. See Andrea Wenzel et al., Tow Ctr. for Digital Journalism, “Pink Slime”: Partisan Journalism and the Future of Local News, Colum. Journalism Rev. (Jan. 26, 2024), https://www.cjr.org/tow_center/pink-slime-partisan-journalism-and-the-future-of-local-news.php. Given the lack of express human contribution, there would be a strong presumption against passing the “speaker” threshold unless the operation can show its reviewers made meaningful editorial choices, such as through editorial selections, arrangements, or other substantive interventions.

This proposed framework doesn’t pretend to resolve the metaphysical question of whether AI outputs “really are” speech. It’s a more modest and tractable inquiry: Where is the human expressive contribution in the machine output, and how predictable was the output given that contribution?

One concern with this approach is that it might chill forms of AI-assisted human expression, particularly for those who lack the resources to litigate. In that case, the framework could include a presumption in favor of speaking. Some cases would be easy to satisfy, such as the journalist using AI to tighten prose. For more borderline cases, there could be a safe harbor. For example, once a speaker shows meaningful human contribution through chatlogs, prompt iterations, draft revisions, or other ordinary byproducts of creative work, a presumption of speaking attaches. Then the burden shifts to the opposing party to show that the human role was too attenuated or pretextual.

The presumption runs the other way for outputs produced at a pace or scale no human could meaningfully oversee, or when it flows entirely from automated, high-level commands. A platform that has trained an automated moderation system on detailed editorial criteria, audits its outputs, and can demonstrate that the system implements predictable expressive choices may rebut the presumption against speaking. This tracks Justice Barrett’s hypothetical in Moody v. NetChoice: AI processes that “implement human beings’ inherently expressive choice” remain protected, while AI processes given vague directives and allowed to run on their own do not.23 23. Moody v. NetChoice, LLC, 603 U.S. 707, 746 (2024) (Barrett, J., concurring) (quoting Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 574 (1995)).

There are three significant complications with the framework I’m suggesting. First, if corporations can invoke the First Amendment, why can’t AI systems? Citizens United and its predecessors might seem to be the logical go-to here.24 24. Citizens United v. FEC, 558 U.S. 310, 342–43, 349 (2010); See also Volokh et al., supra note 5, at 666-70; Benjamin, supra note 5, at 1471–76; Wu, supra note 5, at 1510–14; Kaminski, supra note 5, at 612–18. But the corporate speech cases arguably rested on the implicit premise that corporations aggregate and channel the expressive interests of identifiable human principals: shareholders, directors, officers. One interpretation is that the First Amendment protects the human expressive contribution that flows through the corporation, not the corporate form itself. The corporate form is a vehicle for human decisions and expression, while a swarm of autonomous AI agents is not.

Courts have also consistently declined to extend constitutional protection to non-people, including animals, in part because “unlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman[s] cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.”25 25. See Matter of Nonhuman Rights Project, Inc. v. Breheny, 38 N.Y.3d 555 (2022) (denying a petition for writ of habeas corpus seeking to secure the transfer of Happy the elephant, a resident of the Bronx Zoo, to an elephant sanctuary because Happy was not considered a “legal person” under the law despite allegations that Happy was cognitively complex and autonomous enough to qualify); Miles v. City Council of Augusta, 710 F.2d 1542, 1544 n.5 (11th Cir. 1983) (denying First Amendment rights to Blackie the “talking” cat). See also Salib, supra note 5, at 129. This applies equally to machines, which cannot be held legally accountable in and of themselves: only the humans or corporations that own or administer them can.26 26. See Mark A. Lemley & Bryan Casey, Remedies for Robots, 86 U. Chi. L. Rev. 1311 (2019). For example, so far there is little evidence that denying First Amendment protection to machine-authored content will have any chilling effect on the machines themselves. It’s consistent with copyright’s longstanding refusal to extend protection to non-human entities, including spirits, monkeys, and well-designed gardens.27 27. In Naruto v. Slater, the Ninth Circuit denied copyright protection to the infamous “monkey selfie” photograph, holding that absent a clear congressional statement, the default rule should be that non-humans cannot be considered “authors” under the Copyright Act. Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). Courts have also denied copyright protection to a garden designer because “natural forces” were the garden’s primary authors, see Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011), and to otherworldly entities such as spirits, see Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997).

This brings us back to Barrett’s concurrence in Moody v. NetChoice, where she questioned whether AI-based content moderation decisions would be First Amendment-protected.28 28. Moody v. NetChoice, LLC, 603 U.S. 707, 744–47 (2024) (Barrett, J., concurring). AI-based decisions could qualify, she suggested, if they “simply implement human beings’ inherently expressive choice ‘to exclude a message [they] did not like from’ their speech compilation,” for instance “to remove posts promoting a particular political candidate or advocating some position on a public-health issue.”29 29. Id. at 746 (citation omitted). In this, she agrees with the majority’s assumption that the platforms’ curation and recommendation algorithms, presumably written by human programmers and operationalized via human-written Community Guidelines and Standards, were protected because those humans designed the logics and objectives of the programs themselves and oversaw their implementation. See Moody, 603 U.S. at 718 (noting it would be a violation of the First Amendment if a law “prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities.”), at 736 n.5 (explicitly noting that the majority opinion does not address “feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards.”). But she contrasted this with a scenario in which “a platform’s owners hand the reins to an AI tool and ask it simply to remove ‘hateful content,’” and then she asks: “If the AI relies on large language models to determine what is ‘hateful’ and should be removed, has a human being with First Amendment rights made an inherently expressive ‘choice’?”30 30. Id. at 746-47. Such autonomous AI-driven actions may be too removed from “human beings’ constitutionally protected right” to merit protection.31 31. Id. at 747. This parallels the same concept of attenuation that the Copyright Office uses in its test for authorship.

At least one district court has applied Barrett’s approach in rejecting an AI company’s early-stage argument in favor of First Amendment rights for its fully automated chatbot.32 32. See Garcia v. Character Techs., Inc., No. 6:24-cv-01903, slip op. at 31 (M.D. Fla. May 21, 2025) (“[T]he Court is not prepared to hold that Character A.I.'s output is speech.”) (relying on the Barrett concurrence in Moody for its reasoning). This also echoes the Copyright Office’s framework and copyright law’s broader “volitional conduct” doctrine, which acts as a threshold test for liability and denies it where infringing copies are made purely through automated machine activities.33 33. See also Kate Crawford & Jason Schultz, The Work of Copyright Law in the Age of Generative AI, Grey Room, Winter 2024, at 59-60; Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121, 130–33 (2d Cir. 2008) (holding that automated copying by a remote DVR system did not constitute volitional conduct by the operator); Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1369–70 (N.D. Cal. 1995) (establishing the volitional-conduct requirement for direct copyright liability). But see American Broadcasting Cos. v. Aereo, Inc., 573 U.S. 431 (2014) (limiting the doctrine in the context of compulsory copyright licenses for cable and satellite services).

Second, even without a human speaker, don’t listeners have a right to receive AI-generated content? As this argument goes, even if AI outputs lack a human speaker, human listeners may wish to receive them, and the First Amendment often protects the right to receive information.34 34. See, e.g., Volokh et al., supra note 5, at 658–62 (advancing the listener-rights theory as a basis for First Amendment protection of AI outputs). Cases such as Lamont v. Postmaster General, Virginia Pharmacy, Stanley v. Georgia, and Red Lion Broadcasting Co. v. FCC have often been read to protect access to expression regardless of the speaker’s interest.35 35. Lamont v. Postmaster Gen., 381 U.S. 301, 307–08 (1965); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756–57 (1976); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). But the right-to-listen cases involved human speakers whose communications were being kept from human audiences. Where there’s no human speaker, it becomes more complex. You may enjoy the sound of ear-splitting construction noise or whale songs but that doesn’t necessarily implicate your constitutional rights.36 36. See Burk, supra note 5. At least one court has specifically held that the right-to-listen does not apply to non-human speakers in the case of captive rhesus macaques monkeys, even if they are “willing speakers under the First Amendment” who regularly communicate “through vocalizations, facial expressions, head and limb movements” and other behaviors.37 37. John M. Simpson, PETA's Monkey Speech Claim Fails, Animal L. Devs.: A Duane Morris Blog (Mar. 19, 2026), https://blogs.duanemorris.com/animallawdevelopments/2026/03/19/petas-monkey-speech-claim-fails/. AI outputs derived from training data are not, in the relevant sense, what other people are saying. They are statistical recombinations of past human expression to which listeners generally have direct access through other means.38 38. See Ananny, Probably Speech, Maybe Free, supra note 5 (characterizing algorithmic outputs as statistical recombinations rather than original expression); Salib, supra note 5, at 112–18 (arguing that AI outputs are derived from human-authored training data to which audiences have independent access); See also Crawford and Schultz, The Work of Copyright Law in the Age of Generative AI, supra note 34, at 56, 62–65 (analyzing the relationship between AI outputs and their training corpora).

Murthy v. Missouri closed off the broadest version of this argument. The Court confirmed that generalized listener rights claims unanchored to specific speakers and specific suppressed content don’t establish a concrete First Amendment injury.39 39. Murthy v. Missouri, 603 U.S. 43, 73–76 (2024) (holding that a generalized “right to listen” to all online content “is startlingly broad, as it would grant all … users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech. This Court has ‘never accepted such a boundless theory of standing.’ ”) (quoting Already, LLC v. Nike, Inc., 568 U. S. 85, 99 (2013)). So a general right to listen to AI is unlikely to succeed. Specific humans would have to show their interest in specific AI content just to qualify for court standing to challenge AI regulations. The copyright parallel is instructive here too. The Constitution grounds copyright in promoting the “progress of science and useful arts,” a purpose that might seem to justify protecting machine authorship on listener-benefit grounds.40 40. See U.S. Const, Art I., Sec. 8, Cl. 8. Courts and the Copyright Office have rejected that move. If limiting authorship to humans is constitutionally sufficient to promote the progress of science, it is hard to see why limiting First Amendment protection to human speakers isn’t also constitutionally sufficient.

A third issue concerns data. For years, Sorrell has troubled regulators, information law scholars, and privacy advocates because its language appears to extend First Amendment protection broadly to information flows that eventually lead to recognized speech.41 41. Sorrell v. IMS Health, 564 U.S. 552, 570 (2011) (holding that "the creation and dissemination of information are speech for First Amendment purposes" and striking down a Vermont statute restricting the sale of pharmacy prescriber-identifying data for marketing purposes); see Jane Bambauer, Is Data Speech?, 66 Stan. L. Rev. 57, 62–63 (2014) (analyzing Sorrell's expansive treatment of data as speech); Ashutosh Bhagwat, Sorrell v. IMS Health: Details, Detailing, and the Death of Privacy, 36 Vt. L. Rev. 855, 856–58 (2012) (arguing that Sorrell threatens privacy regulation); Neil M. Richards, Why Data Privacy Law Is (Mostly) Constitutional, 56 Wm. & Mary L. Rev. 1501, 1503–06 (2015) (cataloguing concerns that Sorrell could be read to invalidate substantial portions of privacy law). Read maximally, Sorrell would protect almost any data eventually used to generate any protected output.42 42. See Jack M. Balkin, Information Fiduciaries and the First Amendment, 49 U.C. Davis L. Rev. 1183, 1208–10 (2016) (warning that an expansive reading of Sorrell would extend First Amendment protection to virtually any flow of information); Genevieve Lakier, The First Amendment's Real Lochner Problem, 87 U. Chi. L. Rev. 1241, 1244–48 (2020) (critiquing the doctrinal trajectory of which Sorrell is part). In the context of agentic AI, this could mean almost any output or activity.

But Sorrell, like the corporate speech and listener rights cases, involved human-generated information: pharmacists’ records of doctors’ decisions, recorded and aggregated for human audiences.43 43. Sorrell, 564 U.S. at 558–59. Extending that logic to machine-generated outputs would leave almost no room for any regulation of online content at all. A better reading, consistent with Barrett’s Moody concurrence, is that First Amendment protection tracks the presence of human expressive choices. It attaches where machine outputs predictably implement those choices and weakens as that connection attenuates.44 44. See Moody, 603 U.S. at 745–47.

Agentic AI risks redrawing the boundaries of speech in ways that favor machines over the individuals who might use them. A threshold anchoring First Amendment protection to human expressive contribution offers one doctrinal mechanism for resisting that tendency. It does not resolve what scrutiny applies once a human speaker is established, how courts should handle hybrid cases in which human and machine contributions are deeply entangled, or whether the line between human cognition and AI assistance will even be locatable in the next decade. Those are questions for another day.

But the courts need a threshold, and soon. The next wave of First Amendment litigation will not look like the last one. It will involve content that no human authored, accounts running on autopilot, and speakers who never spoke. Right now, there is no established approach to handle these cases. The Copyright Office had to develop a threshold test to deal with the influx of AI-generated content, and First Amendment doctrine can do the same. The Amendment protects human speech and association. It was not designed to shelter slop factories or swarms of autonomous agents from democratic regulation.

The bill would create new safeguards against government coercion of private speech intermediaries, including social media platforms, broadcasters, and providers of AI systems. It would establish a federal cause of action against federal agencies and officials who unlawfully coerce or attempt to coerce these intermediaries into suppressing or otherwise taking action with respect to protected speech. It would also establish new transparency measures, including standards for logging covered communications between federal officials and private intermediaries and a public portal for certain covered communications.

“Government officials are free to speak, persuade, inform the public, and enforce the law. What they cannot do is use threats or regulatory power to coerce private intermediaries into suppressing protected speech,” said Nadine Farid Johnson, policy director at the Knight First Amendment Institute. “The JAWBONE Act would create an important mechanism for accountability when government jawboning crosses the constitutional line, and we appreciate the leadership of Senators Cruz and Wyden in introducing this bill.”

The Knight Institute has long warned that government jawboning can distort public discourse and evade meaningful judicial review. In 2024, the Institute launched “Jawboning and the First Amendment,” a research initiative examining how informal government pressure can function as a form of censorship, why it matters, and what legal and policy responses can address its harms. When officials pressure social media platforms, broadcasters, or other intermediaries to suppress protected speech, the burden often falls on the speakers and listeners who are excluded from public discourse or whose access to information is restricted.

At the same time, the Institute has emphasized that not every communication between the government and private intermediaries is coercive. Government officials must remain free to share information, advocate their views, respond to emergencies, and enforce existing law consistent with the First Amendment. The JAWBONE Act recognizes this distinction by targeting coercive efforts to induce content actions while preserving space for lawful government communication.

By creating a private right of action, the bill would be an important step toward ensuring that coercion of private speech intermediaries does not evade public or judicial scrutiny.

Read the overview of the JAWBONE Act here.

Relying chiefly on donors risks directing an institution’s mission to the donors’ priorities, which will not always align with the priorities of faculty, students, administrators, and other stakeholders. A wealthy alum who is the CEO of an oil company might be happy to fund a new but mostly unnecessary stadium that bears his name or to endow a chair in economics but reluctant to fund the climate science initiative favored by the faculty, students, and administration. To be sure, canny university leaders gently nudge donors to support projects the former would fund in any event and then, because money is fungible, direct additional resulting resources where most desired, but this tactic is not always available.

Government funding of research carries the same risk of mismatch with internal priorities that donor funding does, and, as we have seen since the start of the second Trump administration, it carries additional risks because of the sheer size of the numbers involved. The single largest gift to a university was Michael Bloomberg’s 2018 one-time donation of $1.8 billion to Johns Hopkins University, his alma mater. But for decades Johns Hopkins has also been the recipient of the most federal grant money of any university, collecting $3.6 billion in just fiscal year 2024. Such largesse creates dependency. Thus, in 2025, in response to Trump administration cuts to the U.S. Agency for International Development and other cutbacks, Johns Hopkins lost $800 million in revenue, which led to thousands of layoffs, followed by a hiring freeze and other austerity measures.

To some small-government libertarians, the remedy is to greatly reduce the federal government’s role (and perhaps the role of state governments as well) in funding higher education (and much else). If money provides leverage, their argument goes, a substantial reduction in government spending results in a substantial reduction in leverage. The libertarian claim is not entirely wrong, but it is only a partial solution to the problem of government pressure, and it would throw the baby out with the bathwater.

The libertarian approach is at best a partial solution because the government has forms of leverage independent of direct funding. The government can increase taxes on endowment income, as it did in the “one big beautiful” tax-and-spending changes Congress enacted in 2025. It can deny visas to foreign students, as it attempted with respect to Harvard University in May 2025. Although a federal district judge preliminarily enjoined the Trump administration’s visa denials as unlawful retaliation against Harvard, the government has appealed that ruling, and, as we have seen in multiple settings, the likelihood of ultimately prevailing against the Trump administration is no guarantee that the administration will not cause targeted actors substantial interim damage. Beyond taxation and immigration, the government has other powers it could abuse to threaten universities and other knowledge-producing institutions. Ending or substantially reducing government funding would not prevent such abuse.

Moreover, ending or substantially reducing government funding of universities and other knowledge-producing institutions would be ill-advised quite apart from its impact on leverage that could be abused. Incentives to maximize shareholder value lead the private sector to underinvest in the kind of basic research that ultimately redounds to the benefit of the broad public. As noted above, other sources of funding (chiefly tuition and private donations) do not adequately fill the gap. Thus, as a coalition of leading public and private research universities put the point: “Since World War II, public sector investments in basic scientific research have formed the backbone of American innovation and ingenuity—helping our nation lead the world in scientific discovery, technological advancement, and economic growth and prosperity.”

Is there a way to provide government funding without risking undue governmental influence? Maybe. The key is to create dedicated funding streams over which the executive branch lacks the ability to exert influence.

In the past, that might have meant creation of an independent agency with disbursal responsibilities, such as the research councils one sees in the United Kingdom. By law (under the so-called Haldane principle), their “funding decisions are made independently of government.” However, this model will very soon be unavailable in the United States, because U.K. research councils, while acting independently of political interference, are nonetheless governmental entities. Given the very high likelihood that the Supreme Court will invalidate removal restrictions for the principals of nearly all independent agencies in Trump v. Slaughter, some other mechanism must be found.

Luckily, several alternative models are available. Perhaps the most straightforward would be for funds to be appropriated to a privately held escrow account or trust, much in the way that municipal bonds are made payable through irrevocable arrangements.

The Supreme Court has offered only the slimmest of grounds for distinguishing the Federal Reserve Board of Governors from other independent agencies, but it has pointed to the Fed’s “quasi-private” status. We can understand the significance of that status by reference to the ostensible constitutional harm caused by independent agencies: They assign executive power to government personnel and entities not answerable to the president via removal, but where power is given to a quasi-private entity, that power is more difficult to characterize as executive in nature. It follows a fortiori that empowering a truly private entity to make only ministerial disbursements would not undercut Article II’s Vesting Clause or its Take Care Clause, both of which are typically invoked to challenge independent agencies.

There are already some federal models for private entities to disburse public funds, such as Federal Home Loan Banks. To completely eliminate the risk of invalidation in the event that the Court articulates a very restrictive view in Slaughter, state-chartered entities could be deployed, although direct or indirect control by states could place funding at risk for those knowledge-producing institutions in states led by politicians who share the current presidential administration’s authoritarian proclivities.

I conclude with two caveats. First, I recognize that legally insulating federal funding streams from executive oversight would not eliminate all forms of leverage, just as the libertarian approach of eliminating such funding streams would not. But, as noted above, preservation of such funding is valuable in itself. A partial solution that keeps the baby alive is better than a partial solution that throws the baby out with the bathwater.

Second, one might worry that without the government’s ability to withhold appropriated funds, a future enlightened presidential administration would be unable to enforce Titles VI and IX of the Education Amendments of 1972. That need not be, however. For one thing, prior to the Trump administration, the Department of Education (DOE) had never deployed the ultimate sanction of a funding cutoff in response to Title VI or IX violations by a college or university. For another, Congress could amend federal law to switch the default—so that the administration would need to go to court and bear the burden of proving prove civil rights violations in order to obtain a court order to a disbursal entity to curtail payments.

That kind of a change might even garner support from Republicans in Congress who have sometimes complained about heavy-handed actions by the DOE under Democratic administrations. Although Republicans’ ire was mostly focused on the substance of DOE actions—involving rules governing the investigation of sexual assault allegations during the Obama administration and rules governing transgender status discrimination during the Biden administration—there could be bipartisan support for curtailing unilateral executive power in this domain more broadly.

“I’m a teacher and a mother. I drive to work, I drive my kids where they need to go, and I try to show up for people in my community,” said Sarah Moore, a plaintiff in the case. “It’s scary to think that my car can be tracked just because I’m going about my life, and that this information can be shared with ICE. I shouldn't be watched by the police every time I get behind the wheel. No one should.”

The suit argues that by collecting and storing extensive personal information about millions of drivers, the program violates the New York State Constitution’s protections against unreasonable searches and seizures and exceeds WCPD’s authority under New York law. The lawsuit asks the court to declare the system unlawful and prohibit WCPD from operating it. 

“In a democracy, a police department cannot unilaterally decide—without legislative authorization—to surveil the daily movements of its own citizens without any real accountability, transparency, or oversight,” said Barry Friedman, founder and faculty director of the Policing Project at NYU School of Law. “At a time when our personal data is being collected and misused on an unprecedented scale, this indiscriminate data surveillance must not be allowed to continue in the dark.”

WCPD’s highly advanced, invasive system deploys at least 575 cameras—known as automatic license plate readers—that indiscriminately record vehicles on Westchester County roads, from residential neighborhoods to major highways, and analyzes those recordings using sophisticated AI tools. These cameras are connected to a database containing hundreds of millions of vehicle recordings, each of which WCPD retains for at least two years. WCPD provides more than 50 outside agencies with access to that data, including ICE.

“Westchester County’s mass surveillance apparatus is infringing on New Yorkers’ privacy and violating basic constitutional limits on police power,” said Daniel Lambright, director of Criminal Justice Litigation at the New York Civil Liberties Union. “Right now, the Westchester County Police Department is collecting and storing huge swathes of highly personal data—making it easy for police officers and the government to track where drivers work, who they meet, where they pray, and even which doctors they visit.”

In 2024 alone, the system collected more than 264 million recordings, more than 99 percent of which were unrelated to any suspected crime or investigation. This data can reveal intimate portraits of people’s movements, routines, and associations. The groups say WCPD operates the system without meaningful safeguards governing how officers may collect, use, or share the data. 

“This case is about whether we can move through our communities without the government compiling a digital dossier on our activities and associations,” said Jake Karr, staff attorney at the Knight First Amendment Institute. “We shouldn’t have to worry that we’re being watched and recorded every time we get behind the wheel. That sort of mass surveillance should have no place in an open, democratic society.”

The complaint also raises concerns about how the cameras are deployed, including their concentration in neighborhoods with largely Black and Latino populations that are already more heavily policed.

Read the complaint here.

Read more about the lawsuit, Umemoto v. Westchester County Police Department, here.

Lawyers on the case include Daniel Lambright, Thomas Munson, Amreeta Mathai, Chantelle Williams, Anya Weinstock, and Molly Biklen from the NYCLU; Jake Karr and Alex Abdo for the Knight First Amendment Institute; Barry Friedman and Nancy Glass for the Policing Project; and Justina Sessions, Eunice Leong, and Steven Fisher, as well as Law Clerks Ortal Isaac and Sabrina Zhang (not yet admitted to the practice), for Freshfields US LLP.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org 

WCPD operates one of the largest and most technologically advanced vehicle surveillance systems in the country. The system deploys at least 575 cameras that indiscriminately record vehicles on Westchester County roads and analyzes those recordings using sophisticated AI tools. WCPD collects and retains hundreds of millions of vehicle records in a searchable database for at least two years, allowing police to compile detailed records of drivers’ movements, routines, and associations over time. WCPD also provides more than 50 outside agencies with access to the data, including U.S. Immigration and Customs Enforcement.

The lawsuit alleges that WCPD operates the system without authorization from any elected body and without meaningful safeguards governing the collection, retention, use, or sharing of sensitive vehicle surveillance data. The plaintiffs seek declaratory and injunctive relief barring WCPD from operating the system.

Status: Complaint filed in New York Supreme Court on June 9, 2026.

Case Information: Umemoto v. Westchester Cnty. Police Dep't, No. 65935/2026 (N.Y. Sup. Ct.).

In support of Inofuentes’s appeal, the amicus brief addresses the burdens that electronic device searches at the border place on the First Amendment rights to freedom of speech, association, and the press, as well as the Fourth Amendment right to privacy of all travelers. The brief explains that these searches expose vast amounts of expressive, associational, and highly sensitive personal information, including journalists’ newsgathering materials, the identities of confidential sources, travelers’ private messages, social media accounts, political views, and religious associations.

The brief cites documents obtained by the Knight Institute through FOIA litigation in Knight First Amendment Institute v. Department of Homeland Security, and urges the court to hold that the First and Fourth Amendments require the government to have at least probable cause of a border-related offense before conducting a manual or forensic search of an electronic device at the border.

Status: Briefing ongoing; amicus brief filed June 9, 2026.

Case information: United States v. Michael Inofuentes, No. 26-4150 (4th Cir.).

There is a normative erosion going on and it starts in law schools and it goes all the way through the legal profession in what the value of law is and what the value of an independent legal profession is. And what the value or even idea of impartial judging is and a disbelief that any of those things are actually possible ever.

Hello and welcome to Lawyering Without Law, a new podcast by the Knight First Amendment Institute, where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country slide into authoritarianism. I’m Katie Glenn Bass, I am the research director at the Knight Institute. My co-host Madhav Khosla is unfortunately out sick this week, but we still have a great show for you, featuring our guest, Professor Deborah Pearlstein. Professor Pearlstein is the director of the Princeton Program in Law and Public Policy, or P*Law for short, and Charles and Marie Robertson, visiting professor of law and public affairs at Princeton University. Her work focuses on constitutional law, democratic governance, civil liberties, and executive power, particularly during periods of political instability and institutional stress. In this conversation, we’ll talk about the forces that shape lawyers’ sense of professional identity, the current state of democracy in the United States, and how lawyers should respond in moments of institutional strain. Deborah, welcome to Lawyering Without Law. Thank you so much for joining us today.

Deborah Pearlstein:

Thank you so much for having me. I’m delighted the podcast is up and running.

Katy Glenn Bass:

Oh, thank you. I have really been looking forward to talking to you in particular because I know you have been thinking about this specific set of questions about lawyers’ professional identity about the relationship between the legal profession and the rule of law for quite some time now, for longer than I have certainly. And I know you have a book coming out later this year called Losing the Law. So to start off, could you tell us about that book project and how it came about and how it has developed?

Deborah Pearlstein:

Yeah. So I started working on this book project I think back in 2022 or ’23, but in fact, it grew out of work that I had done for many years on constraints on executive power. And I was interested in, among other things, the role of lawyers in the executive branch as a constraint or not on political decision making that the executive made. And I had done a fair bit of work on that question. And then as we saw the first Trump administration unfold and especially in the catastrophic end when there were not only all kinds of challenges to the election in court. But the post-election series of efforts to challenge the election culminating obviously in the January 6th attack in 2021, lawyers were front and center in that conflict. And for better and worse, that is to say, if you think about the legal profession, and I think it’s important to talk about the whole profession, which includes not just lawyers, but judges and law students, from soup to nuts, so to speak. There were really very, very different responses and it did not at all track partisan lines per se.

So we saw many, many lawyers and judges including in the Department of Justice, including lawyers who had been appointed by Trump himself in the first administration. Plenty of Republican appointed lawyers on the bench and obviously Democratic lawyers and judges as well. Pushed back very hard and in critical and ways at pivotal moments and were instrumental constraints, not just on executive power, but if you think about this in constitutional democracy terms, were the bulwarks. These were the guardrails of constitutional democracy. They played a central role in helping prevent the United States from sliding into a very different system of government entirely. So that was one set of lawyers. And on the other side, or on the other hand, you saw very different kind of lawyer. And at the most absurd end, there were lawyers like Rudy Giuliani, but there were also people in the Department of Justice like Jeff Clark and others who lied, who not only lied publicly and repeatedly about what actually happened and what they knew and what the evidence showed, but who also lied to courts about what was happening.

And we had thanks in part to congressional hearings and many other sources, a lot of information about those particular individuals, what led them to do what they were doing, why was it that some lawyers seemed to feel really bound by legal professional norms and some simply didn’t seem to feel that way. And that was really the impetus for writing the book, which ultimately I anticipated that the book would conclude with a chapter or a couple of chapters on the dangers of what my friend Brad Wendell would call the bad lawyers of 2021. But in fact, what it concluded in is here is how we see the effects of what has given rise to this category of lawyers playing out in massively accelerating Democratic backsliding in the United States under Trump 2.0.

Katy Glenn Bass:

Yeah. And we are still right in the middle of all of that.

Deborah Pearlstein:

Absolutely.

Katy Glenn Bass:

So I know in your work you traced the roots of the current situation back to the Reagan Department of Justice. You trace a line from that up to the lawyers who helped Trump try to overturn the 2020 election. So for listeners who haven’t followed that history as closely as you have, what are the links in that chain that people should know about?

Deborah Pearlstein:

There are a lot of different links there. One is after the Watergate scandal in the 1970s, there was a real revolutionary moment in the legal profession. When it became clear as we saw through criminal prosecutions of lawyers, a role that lawyers had played in aiding the president’s corruption. And the legal profession across the board really said, “Okay, what can we do in the profession to prevent this from ever happening again?” One of the major sets of reforms happened in the Department of Justice itself that were designed to check the ethics of justice department lawyers. So there were a set of offices created inside the Department of Justice. The ABA issued a revised set of model rules of professional responsibility, making clear that its basic ethical rules for lawyers also applied to lawyers who were parts of organizations including the government. And eventually it became clear that the courts were going to enforce these rules or were going to attempt to enforce these rules.

But even as all these constraints were being put in place and adopted really widespread ways by the profession. In the early Reagan administration, there was an effort to design a theory of executive power that had the effect of calling into constitutional question all of these constraints on executive branch lawyers. The constitutional idea was that the executive had to have total control over all personnel and policymaking inside the executive branch. So even if Congress passed a law that said, for example, all government attorneys are bound to the same rules of professional ethics as every other lawyer in the state where they practice, even that would pose a constraint on the president’s ability to tell lawyers they have to do whatever the president wants them to do.

And this played out in a variety of ways inside the Department of Justice as there were repeated efforts, for example, to limit the office called the Office of Professional Responsibility that did end up getting charged with supervising legal ethics on basically this separation of powers grounds that this professional apparatus is an intrusion on the president’s total control over the executive branch, even if that apparatus is designed to ensure truth telling by lawyers. And it turned out that those efforts, while they were failing in the courts throughout the 1980s, and really in key respects, haven’t succeeded in the courts until very recently, were having tremendous impact inside the Department of Justice where the ethical checks that were created were really kneecapped from the beginning.

So as major legal ethics scandals unfolded, especially beginning in the early 2000s. Those scandals, efforts to turn Justice Department hiring into a partisan exercise in a way that the law precluded it from being, efforts to deal with lawyers who lied. The lawyers who did those things met with no consequences, certainly no formal consequences inside the Department of Justice. The apparatus was strained, it was inadequate, it was incredibly slow and in part because of the obstacles were completely ineffective in dealing with those challenges.

And that had two consequences. One was, of course, there was no actual accountability for lawyers who were engaging in ethical misconduct over a period of years. And the second consequence was a much broader normative consequence for the profession. Justice Department lawyers have long been perceived as at the very top of their profession. These jobs are sought after they are prestigious, they’re very hard to get. And they have included and been peopled by some of the greatest lawyers in the United States and in US history. And when it became clear to the profession that it was possible that putting partisan interest or political gain ahead of professional responsibility could have some career benefit, it created this incentive loop that I think is not wholly, but at least partly responsible for where we are now.

Katy Glenn Bass:

Thank you. That’s a really great history. And I will just say for the listeners, I have had the privilege of reading a few excerpts from the book and it is just beautifully written and really fascinating material. So I look forward to reading the whole thing later.

Deborah Pearlstein:

Thank you.

Katy Glenn Bass:

So going back to the there’s no lying in law rule, is that still the rule?

Deborah Pearlstein:

It is absolutely still the rule. And maybe I should be a little bit more specific. It’s not actually called by anybody but me that I know of the no lying law rule. But there are a host of constraints on lawyers that are designed to ensure truth telling. And here I’ll say what one classic example of that rule is, but let me here just distinguish this maybe from the way we think about the speech rights of elected officials or anybody else, of you or me where we not licensed members of the bar. So everybody pretty much has a First Amendment right in the United States to say whatever they want with very rare exception whether it is true or false. And so the president himself or any official who works for the president can go out on the stump on a campaign trail or call a press conference or whatever it is and make up almost anything.

And not only are there no legal consequences for that, that is a First Amendment protected right that that person has to say things even that are untrue in almost all circumstances. If you or anybody else walk into a courtroom and take an oath and lie under oath, you can be criminally prosecuted for perjury. If a licensed lawyer like me walks into court and lies to the court, whether we are under oath or not, that is violating what the Bar Association rules call the duty of candor. And that particular rule says it is a violation of the rules of professional responsibility to lie to a tribunal. And lawyers have, you could think about it as limits on their speech that other professionals don’t have. But if you think about it not in terms of people or individual rights, but in terms of the function of the courts and the function of the legal system, one of the central norms that distinguishes law from politics in the United States is law remains or is supposed to remain. And by rule, a host of rules remains a reality-based profession.

Without that constraint, there become many, many, many fewer differences between law and politics and it very quickly loses its not only authority but legitimacy as a separate system, right? Nobody elects us, nobody elects judges. Why should we listen to them? And the reason is presumably doing law is different from saying whatever we want or doing politics. Okay. So that’s where the no lying in law rule comes from.

Katy Glenn Bass:

I think that’s a really important distinction to make between law and politics. The fact that the legitimacy of the legal profession rests on this idea that lawyers are following this strict set of ethical rules and that they respect those rules. Some of the most effective resistance we have seen to Trump in both his first and second term has come from lawyers. Has been in the first term, it was the lawyers in the room who said, “No, you can’t do that.” Second term, we have fewer of those lawyers in the room. We do still have a lot of lawyers within the government who have chosen to resign rather than to go along with things that they believe to be illegal or unethical. We have judges who are rejecting claims that are meritless, the presumption of regularity that judges have long afforded to the government in cases brought before that is really breaking down before our eyes.

So how do you sort of measure these things? I fully agree with you that a lot of the behavior that we are seeing among lawyers is really alarming. But there is also this group of lawyers, this behavior that we see from lawyers that is what we would expect from people who are taking ethical obligations seriously.

Deborah Pearlstein:

So I think that’s a really important question. And in a chapter of my book that I rarely in advance, rarely give to people who are lawyers or know anything about law to read. It turns on why lawyers would behave that way in the first instance, right? In other words, when I talk to my political science colleagues, the notion that a court might abide by an earlier ruling because they believe that they’re supposed to, unless there’s a really good reason not to and that that’s a sufficient reason. Find that almost impossible to believe, right? Almost impossible to believe that there is some independent, whether you think about it as a moral or philosophical or professional code or set of beliefs that distinguishes law from politics. I think there are at least three. One of them we’ve already talked about and that is what I’ll call the norm of legitimacy, the idea that law is different from politics because you can’t lie.

But there are also two other norms that I think are really pretty important in this context. One is what I’ll call a norm of stability. And if you’re a member of Congress and you’re elected, often you’re elected with a mandate to change how things are. You’re certainly not elected with any responsibility or expectation that you will pay much attention or need to pay much attention to what the last guys in that office do. In fact, it may be central to your job to change what we’ve been doing and we don’t call that precedent busting or norm destruction or anything else. We call it usually democracy, right? That’s what the job is supposed to be. But lawyers and judges are trained from day one of law school to start with, “Well, what is the law now?” Right?

Katy Glenn Bass:

Mm-hmm.

Deborah Pearlstein:

Not first. How do we apply it in this case? How might this case be different? But first, either what a judge has said before, what a legislature has said before, what your own court has said before and that’s where you start. And that doesn’t mean that that is the end of the inquiry, but it is the beginning of the inquiry. And if you’re going to do something different from what’s happened before, you have to explain why and what’s different. And do so in a way that is justifiable and persuasive not only to a judge or sometimes multiple judges, but that the judge can be persuasive in explaining it publicly as well. That’s the normal stability. And it’s not just there in stare decisis, but in every body of law. If you think about the law of contract, there are a host of rules that say, “Stick to what the parties agreed to unless there is some exceptional reason not to.”

In criminal law, we have a million of these rules and norms like the expos factual rule. You can’t prosecute somebody for something that wasn’t a crime at the time they committed it because that would be unfair. So there are a host of examples of this norm of stability. That really distinguishes law practically I think from almost every aspect of policy and politics and in key respects. And then there’s one last norm, that is what I’ll call a norm of modesty. And this is the idea that is of the last 120 years plus in the United States or more, that recognizes that law is not a science. We’re not searching for some physical truth in the universe. It’s not like looking for laws of physics, it’s really an exercise in interpretation. Even the simplest laws and there are a million debates we can have about interpretation and procedural rules that it surrounded and a host of other things.

But if that’s your understanding and that has been the overwhelming understanding among lawyers and judges for, as I said, well, over a century. Then you probably have a sense of modesty about your role, especially if you’re a judge. If you believe that the enterprise you’re engaged in is not handing down some either religious or physical or mathematical truth about the universe, but is really just doing your best to read a text based on a lot of different kinds of evidence. Then probably you want to develop norms that say, “I’ll decide less rather than more.” I will just answer the question of this dispute in this case, as opposed to trying to opine much more broadly on what I think the cosmic universe requires or even the separation of powers. And those things I think are the norms not only that most lawyers really, really believe and judges, but that are and have been most susceptible to attack and most subject as I described to erosion in the last 30, 40 years.

Katy Glenn Bass:

Thinking about the erosion of those norms, I know one thing that you touched on earlier and you’ve touched on in your work as well is the influence of the conservative legal movement over the course of these last decades and certainly we’re seeing it now. And often that’s shorthanded as the Federalist Society or FedSoc, but as you discuss, it’s a much broader set of influences than that. But can you give us a little more of the history there and the influence that that movement has had on these norms that you’re talking about?

Deborah Pearlstein:

Yeah. And really two different questions.

Katy Glenn Bass:

Sure.

Deborah Pearlstein:

So let me just start with the thumbnail history of the conservative legal movement, which is born in the early 1980s. Most folks date it to this conference that was held at the law school that was organized by students and some law professors, but it quickly in part because of Reagan’s election and in part because of a lot of interest in outside funders becomes a movement of lawyers. Really elite lawyers to start, beginning in law schools who quickly become the young lawyers of the new Reagan administration and law professors who very quickly go on to be judges appointed by President Reagan. And the original goals of the movement are essentially identical to the goals of the then Republican Party.

So 1980s, Reagan, we are going to roll back federal regulation. We’re going to get government out of the regulation of private business on the one hand. And on the other hand, sort of the deconstitutionalization of rights that we think are problematic. And that is everything from criminal procedural rights like Miranda versus Arizona. You have the right to remain silent to obviously individual rights like the right to abortion under Roe versus Wade and a host of constitutional decisions, including racial equality decisions that are in between. And that’s really the elected goal, the platform goal of the Republican Party. And those are the kind of policy goals that the legal movement embraces.

A central reason why there’s a legal movement. And over time, this grows up not just from this very elite group, although there still is a very elite core of law students and law faculty and federal judges and Justice Department and other federal lawyers. But in part through the success of organizations like the Federalist Society becomes there are chapters of conservative legal movement in the FedSoc in every law school in the country over the ensuing years. And a huge growth in conservative public interest groups and litigation shops and increasingly law firms and others. And obviously a growing number of these movement lawyers who are appointed to the federal bench over this period of time.

But the reason it becomes a legal movement in the first instance is because it’s very clear from the beginning, even as Reagan is elected president and is reelected overwhelmingly in 1984. So there is huge popular majority in principle for this political agenda. It is clear to this group that it cannot be achieved through ordinary electoral means. In order to get rid of the administrative state to roll back federal regulation, the most direct route would be go to Congress and get them to gut the EPA, for example, or whichever other regulatory agency you don’t like. But in the 1980s, Congress had been in the uninterrupted hands of Democratic majorities for the previous 50 years. And even if the Republicans won a majority of organizations and agencies like the EPA, were pretty popular with people and they didn’t think they were going to be able to do it that way.

So what they needed was a theory of constitutional power that said, “Actually Congress doesn’t have the power to tell executive branch agencies what to do, even though Congress created the agencies. Really, this all needs to be about presidential power because the presidency we can win.” And that was on the regulatory side. And then on the right side, all of these rights from Miranda versus Arizona to Roe versus Wade were not statutory. They were now constitutional rights. They were decisions of constitutional interpretation by the Supreme Court. Under Article 5 of the Constitution, you could go to the people, a super majority of the people and amend the Constitution if you didn’t like it. But again, most of these rules were extremely popular and increasingly so over this period of time so that seemed unlikely. And the only other way to get rid of Supreme Court decisions was to get them to overturn those previous decisions and not just one or two, but dozens or even hundreds.

And so they needed a theory that would justify for lawyers themselves and judges who continued to believe at this time in the norm of stability. That something in the Constitution not only allows us but requires us to overturn dozens of decisions at the Supreme Court and that those two ideas, unitary executive theory in the realm of executive power and originalism on constitutional meaning are where those ideas came from and when they began to take root.

Katy Glenn Bass:

Right. So I am wondering if you think that there is a comparable legal movement or even the beginning strains of one on the left. You could call it progressive, but I think even more broadly, just the left liberal spectrum. I also wonder, have you seen that historically?

Deborah Pearlstein:

Yeah, that’s a great question and there are a lot of different pieces there, but let me say maybe just a couple of things. First of all, there have absolutely been social movements, political movements, all kinds of movements before. And the conservative legal movement itself very self-consciously was based in its design in its early days on the civil rights movement and its tremendous success. Now they focused on the civil rights movement’s tremendous success in the courts, but one thing that really distinguishes what we now call the conservative legal movement from the civil rights movement writ large is the civil rights movement was always a multifaceted, multidimensional effort. The litigation strategy piece of the civil rights movement was always a part. And in the beginning, in the early 20th century, was a secondary part of civil rights movements strategies more broadly, which had huge legislative components and all kinds of other things.

And ultimately, of course, it was the legislative achievements of the 1964 Civil Rights Act and the 1965 Voting Rights Act through enormous majorities of Congress that actually succeed in... We’ll just take the Civil Rights Act. In getting decisions like Brown versus Board of Education that said, “De jure racial segregation of schools is unconstitutional.” Schools don’t actually start to desegregate until after the Civil Rights Act itself 10 years after Brown versus Board of Education comes down. So that movement, just that particular movement is much more through its history and especially through its most active decades tied to this multidimensional strategy that includes both litigation and popular strategies and all kinds of other things as well.

Okay. So it’s distinct in that way just from the most important comparable or potentially comparable social movement we might think of at the time that has courts if not uniquely in their target. At least one of their targets for achieving social change, for sure. But there’s another distinction that I think may be more relevant and that is originalism, but in popular terms of political terms originalism these days is thought of as code for conservativism. And I don’t think there’s ever been a kind of theory of legal interpretation that’s been more associated with a particular political party than this one, but it wasn’t just designed to achieve conservative outcomes. They thought originalist interpretation would make it more likely that the Constitution would be interpreted more narrowly, that you wouldn’t find, for example, a right to abortion in it. But it was also a very different kind of strategy of legal strategy.

So unlike the Civil Rights Movement that says to the courts and everyone else, you’re misinterpreting what equality means under the 14th Amendment, for example. And Brown vs Board of Education and a lot of the cases that flow from there are about equality under the 14th Amendment or under the 15th Amendment or the like. Here, regionalism wasn’t just a way of telling the courts you got particular decisions wrong, there is no right to abortion. In fact, it wasn’t about that directly at all. It was a way of telling the courts, “You’ve been doing the law wrong, all wrong.” It was a much more existential first order attack on how the courts did their business. And it had to be. They needed a theory that would support overturning generations worth of rulings that were already on the book.

So it wasn’t enough to just say you’re misinterpreting this clause or that clause. It’s you have been approaching the job of constitutional interpretation all wrong. The movement essentially carried a promise that the courts would start behaving in a very different way. And if the courts weren’t behaving that way, then they weren’t really courts at all. And that’s part of why I think this theoretical idea has become so important in destabilizing the norm of stability that is actually not about one political view or another at all.

Katy Glenn Bass:

I had actually not thought about originalism’s role in that way. That’s very insightful. I’m going to switch topics for a minute because I want to make sure we talk about the response of another set of lawyers, which is lawyers at big law firms under the second Trump administration. They are targeting firms that have employed people that Trump perceives as as enemies or firms that have participated in cases against Trump in some way. So it’s retribution just very straightforwardly. But what we see in terms of the response of those firms is that quite a lot of them immediately cut deals with the administration. Even firms who have not actually received an executive order targeted at them yet, they go ahead and they preempt orally make deals with the administration to try to get the target off of their backs.

And then you see a different set of firms that do fight back and that immediately file suits and are successful in winning injunctions against the administration enforcing these executive orders. So I’m just wondering, how do you think about that response in terms of the work that you’ve done in this broader sense of how legal profession identity shifts and how legal ethics understanding shift over time?

Deborah Pearlstein:

That’s a really good question. And I think in part, and in the first instance, what we’re seeing with the firms is primarily their belief that they’re responding to very specific business incentives. And in part, we can see that not only from what they say, which is that, but in the difference between how the different firms responded. So the firms that have sued to say the executive orders are unconstitutional, those firms are firms that primarily characterize themselves as litigation shops, as litigation firms, right? Their brand identity is fighter and that’s very much what they’re doing. Now they’re not solely litigation firms and so forth, but it’s certainly a central part of their brand. The firms that raced to sign deals. First and foremost, Paul Weiss, have increasingly become firms whose business is dominated by enormously high earning partners who work on mergers and acquisitions, who work with private equity firms and that business in particular quantities brings in enormous, enormous firm assets and it gives those particular high earning partners massive outside influence in their firms.

So even where you have firms. And I think this is the case for most, where a majority of partners and certainly majority of lawyers would say, “Well, this is obviously unconstitutional and illegal and the president can do this. And it’s completely unsurprising that four different federal courts have already concluded. This is unconstitutional and illegal and we should sue and not worry about it.” Are overwritten by really small and usually extremely hierarchical law firm management decision making processes that say, “Well, there’s a lot of money at stake.” And I think in this case, that’s the overwhelming piece that’s going on. Now there is unquestionably intersection with some pieces of the story that I tell about the erosion of norms. And it’s not so much these big firms themselves but the lawyers who are working in the administration now. And I think this is most visible in this really dramatic instance that happened with the Department of Justice in the defense of these executive orders themselves.

So four different firms sue, four different federal judges and four different courts in lower courts say these orders are obviously unconstitutional. No. And on the eve of the deadline for filing their appeal, is the government going to appeal these rulings or not? The government says, “We’re not going to appeal.” And all the firms say, “Great with us. Fine. These now go away.” And the day after that, the Justice Department reverses its position and said, “Actually, actually, we take it back, we are appealing. What happened there?” Well, maybe it’s the president himself, maybe it was the then attorney general. It’s unclear, but it seems pretty clear to most folks who pay attention to these cases that there was a reason why the Justice Department wasn’t going to appeal them and that’s because there’s no good case on the law there.

And the odds are they’re going to lose. The odds are overwhelming they’re going to lose even in the appeals court and even in this Supreme Court. But those aren’t the only lawyers working in the Department of Justice anymore. And Trump came to office for some of the reasons I have talked about already and others I can describe with this growing pool of available lawyers. Again, still a minority, the Justice Department’s having a hard time filling jobs. But an available and growing pool of lawyers who are willing to not only take positions that are not consistent with the law as it is, but take positions that are potentially in violation of their existing professional obligations because they believe that in fact that’s where professional advantage lies.

Katy Glenn Bass:

Thinking about what you just said in terms of some of the behavior that we’re seeing from lawyers within the DOJ right now and some of the willingness to go well beyond what the law actually supports. I want to think a little bit now about the state of the United States at present, but then also what comes next. But before I get there, thinking about where we are now, what we’re actually experiencing, there’s been a lot of discussion over how exactly to name this. Particularly when Trump first came back into power in 2025, there was a lot of debate over, is this authoritarianism, is this fascism, is this autocratic legalism? Does this feel more like Weimar Germany or Orban’s Hungary or something else? And I know you’ve thought about this as well and you have a somewhat different perspective on what exactly is going on here. So can you talk about that?

Deborah Pearlstein:

I do. And I don’t know that anybody living through any massive movement or political event in history is the best person to comment on what exactly is happening until 10 years or 20 after the fact. But I think there is enormous wisdom and enormous value in the comparative democratic backsliding authoritarian playbook framework for understanding what’s happening. I think it is enormously valuable in understanding the full scope of what’s happening. I think there is simply no question that the government now in power in the United States took lessons. I don’t mean metaphorically, I mean physically went to Hungary. The vice president embraced Orban. He came to the conservative legal forum, a series of conservative conferences here in the United States, very close with the Heritage Foundation. So there is just an enormous amount that we should be paying attention to there.

But that said, the strategy that this administration has pursued, which is Trump is not Orban. Orban’s a lawyer and smart. Trump does not seem to have that kind of control or is exercising that form of rigorous control over his government. There are some people in the Trump administration who embrace the Orban model, but not all of them. And Trump himself, I’m not sure cares in particular. And a huge part of what we’ve seen out of the administration is not affecting or achieving authoritarian or authoritarian moving change through law, but is ignoring law altogether. So whereas Orban came to power with a legislative majority or parliamentary majority and immediately started putting his parliamentary majority into effect by passing a huge number of different laws and amending the Constitution and all kinds of other things.

Here, Trump comes into office, Trump 2.0 comes into office also with legislative majorities in both Houses of Congress. And instead of going to his Congress, which was probably in the early days, prepared to do pretty much anything the president asked them. Instead of saying, I want to rescind funding to this agency and I want to build a ballroom and I want to... Whatever it is he wants to do, get rid of NIH or FEMA or any agency, they just start doing it. And they do it not just with respect to budget issues but policy changes and a host of measures that whether you call them authoritarian or just radical or whatever you call them. If they had just gone to their Congress and done them through law, wouldn’t have faced nearly the kind of legal pushback and termination that they have faced very often in the lower courts.

And you can see that playing out not just on a macro scale, but the briefs they’re filing, the executive orders they’re issuing. Again, not all of them in the solicitor general’s office, the one office in the Department of Justice that deals with the Supreme Court in particular may be a modest exception to that. But everywhere else and every other legal office in the White House and the Department of Justice and so forth, which is most of them, the quality of the work is poor and unpersuasive. And they can’t find smart lawyers to go work for them and they’re driving out or have pushed out the smart lawyers who they had, who most of them would’ve done most of the things that they asked them to do.

So it feels like a very different approach. It feels much more frontally authoritarian and that has benefits to some extent from a potential pushback point of view that is I think it’s much more publicly visible what’s happening in the United States. And whether the visibility is we’re turning authoritarian or we are turning toward policies with which I wholly disagree, it has made the president’s responsibility for those things incredibly publicly visible. So that’s maybe an advantage in thinking about the after times and people’s willingness to vote them out of office or think twice.

But the one last thing I’ll say here, and this does sort of tie it back to the earlier conversation that we were having. There’s a reason that they can find lawyers who are what I’m increasingly calling legal nialists. These are people who don’t think that law is or should be any different from politics. And part of these people come from this disaffected wing of the old, what had been the conservative legal movement. And you can see this in people like Mike Davis who breaks off from the Federalist Society during the last Trump administration and forms a new group called the Article 3 Project. And this is a group that says lawyers and judges are supposed to get results. They’re supposed to produce the policy outcomes we want. And if they’re not doing that, they’re not helping.

And so that view of law and what the role of lawyers is supposed to be and what the role of the courts is supposed to be comes from a wing of the conservative legal movement that felt betrayed by John Roberts when he voted to uphold Obamacare and felt betrayed by Neil Gorsuch when he voted to conclude that the Civil Rights Act actually also extends to prevent discrimination and employment on the basis of sexual orientation. And these singular decisions where you get maybe one conservative vote were viewed as massive betrayals by a group of lawyers who had grown up being promised usually in the form of originalism conservative outcomes or thought they were promised conservative outcomes. And that betrayal has had a cost and part of the cost is originalism’s not going to get what we want, neither will any law-like approach to doing this. The kind of change we need is post-constitutional, post-legal change. And those are some of the folks who are in leadership positions in the Justice Department today.

Katy Glenn Bass:

Okay. So I think that’s a really helpful way of thinking about what’s happening within the legal profession, this rise of a subset of the profession that adheres to the legal nihilism idea that there isn’t or shouldn’t be any distinction between law and politics or the rules that you play by to get the outcomes that you want. Which is pretty dark, honestly, if that’s where we are and if those are the people in the administration right now. But staying with that view, what does that tell us about what is needed to try to reform or enact consequences for the lawyers who are engaging in that kind of behavior?

Deborah Pearlstein:

Yeah. So I want to say one more thing that takes us even to a slightly darker place and then we end at your question.

Katy Glenn Bass:

Yes. Great.

Deborah Pearlstein:

And this goes back to the question you were asking earlier about, “Do we see any of this on the left?” And in the legal nihilist camp, this is the group that I was describing. I don’t know if I can call folks on the left a legal nihilist in this same sense. But there is a growing group on the left of legal scholars and some legal advocates on the left who think the judges we need to appoint are judges who will vote for our outcomes. Not people who are sort of moderates like Merrick Garland or Elena Kagan even, but people who are going to view the role of the judge as having a very specific moral valence and it is the moral valence that will produce the results that we want.

So there’s some important articles called movement judges, that’s that idea. And that is in some respects a very similar idea, it is a radically different view of what the role of lawyers and judges is supposed to be. Not so much lawyers, but certainly judges. Lawyers have always been advocates and supposed to be advocates. Judges are supposed to be something different and that’s an idea that we’re seeing gain increase in currency on the left as well. So it’s a worry. What does this mean about what we do going forward, right?

Katy Glenn Bass:

Right.

Deborah Pearlstein:

So my own view is a couple of things. I think there are institutional reforms that will help. I think that some court reforms of term limits and that kind of thing will help. I think that it is absolutely possible to reconstruct some degree of better ethical compliance mechanisms inside the Department of Justice and outside the Department of Justice that will help. I think it will be enormously valuable to do things like take the US Marshals Office, which is the group of officers who enforce court decisions and protect the courts from under the supervision of the executive branch where it currently sits and put them under the independent judicial branch where it should sit. So I absolutely think there are institutional corrections that can be made, but I also think it would be a huge mistake given these much longer normative trends that well predate Trump and that are explained by incentives other than Trump to view that as the limit of all we need to do.

There is a normative erosion going on and it starts in law schools and it goes all the way through the legal profession in what the value of law is and what the value of an independent legal profession is. And what the value or even idea of impartial judging is and a disbelief that any of those things are actually possible ever. Now part of that disbelief is driven by the most visible examples we see, how the Supreme Court behaves, for example. Which is a horrible example for a host of reasons, but it is nonetheless an incredibly powerful one because when most folks pay any attention to law, that’s the court they see. That court is exceptional in seven ways to Sunday, but it nonetheless drives this erosion of belief. That’s part of why court reform is among the institutional reforms that’s necessary, but it’s certainly not sufficient. And I think every aspect of the profession, including and especially beginning with law schools has a lot of work to do.

Katy Glenn Bass:

I certainly agree with that. And what about exacting disciplinary consequences for individual lawyers? How effective do you think sanctions like disbarment or other forms of sanction are for deterring conduct that really violates democratic norms?

Deborah Pearlstein:

Yeah. So I think having that there is incredibly important and preserving a mechanism as independent as possible. A mechanism for attorney discipline is incredibly important, especially as applied to these baseline rules like the no lying in law rules, the rules that are uncontroversial within the profession broadly speaking. And I think there are ways of strengthening and rendering more independent that system as well that are at the level of institutional checks. But there’s a caution there as well. And that is as we’ve seen this evolution of the profession and here the conservative legal movement is part of the story gain. It is today possible to proceed on a professional track from the day you walk into law school through the day you retire in your career, whether your career ends as a judge or as a lawyer or in any place in between, to proceed on an entirely partisan track? To work for a conservative law journal, to go to work for a conservative public interest journal, to go to work for a firm that leans conservative to live in that universe entirely.

And it’s increasingly possible to do that on the left, although there are multiple tracks as opposed to a singular track. And if that’s the case, and especially again on the right where there is so much money and so many resources. One of the reasons the Justice Department failure to respond to ethics crises of the 2000s mattered so much wasn’t just because they didn’t suffer formal consequences, the lawyers who violated ethics also had enormously soft professional landings. So even the ones who faced disciplinary consequences could go back to tenured professorships or could instead of practicing law as a licensed attorney, have some other position or even be nominated to the federal bench where licensure by a bar isn’t required to practice as a federal judge. And that availability of soft professional landings of whatever shape. But if you’re employed and you’re well employed, some of the bad lawyers of 2021 went to work for the new Trump administration, law licensure notwithstanding.

The existence of that possibility really undercuts the potential value of professional discipline. We can disbar you and you will still have a job is not a good case to be made. Now again, those are some exceptional cases, but it’s a model we’re seeing replicated repeatedly. So I think bar discipline is a critical element, but it is necessary and not sufficient to the broader regime of normative reputational checks that we have a lot to do to reinforce.

Katy Glenn Bass:

Yeah. The reputational checks is a good way to put it. That was something that I was struck by as I was reading one of your chapters is this, the availability of the soft professional landing. It’s both absolutely right in terms of muting the effect of any of the other consequences that we might be able to enforce. But also probably one of the things that I am most pessimistic about in terms of our ability to change it significantly, just coming out of this administration and thinking about where some of these lawyers are likely to land, I would hope that they will not be able to return to or take up posts at top law schools or fellowships in prestigious institutions. But it is too easy for me to envision how that might be the case for many of them. I think that will be difficult in terms of sending a message.

So you talked earlier about the efforts to reform government lawyering within the DOJ after Watergate and how they were almost immediately undermined and eroded by people in those institutions. So given that history, is there any structural reform that we can enact that you believe would be more durable or are we Sisyphus where it’s going to be a cycle, it breaks down and then we build it back up and then it breaks down again and we continue that way.

Deborah Pearlstein:

So that’s a really important question and there’s good news and bad news. The good news is I really still believe and we’ve seen in the number of Justice Department lawyers who have fled rather than violate the professional responsibility, that vast majorities of lawyers in the profession still hold to the normative distinction between law and politics and the normative rules of the profession, the ethical rules of the profession that we’ve been talking about. So the ability to repopulate or reconstitute or reconstruct truly a Department of Justice and government lawyering I think there’s a real moment here. I think there’s an opportunity. I think there are many, many thousands of lawyers who are appalled with what has happened and they are on the right and left. And so I see a lot of hope there.

In terms of though enacting sort of more formal reforms and setting aside for a minute, the ethics checks that we were talking about. So you could take that ethics role out of the bar associations in particular and attach it to the courts in a way that would allow them to in a more expedited way, get through imposed ethical sanctions on attorneys who play these kinds of games. But so setting aside that kind of discipline, what if you wanted to codify, so enact into legislation, the rules that used to exist by norm and by Justice Department manual, that there should be limited context between the White House and the Department of Justice. That you should not be able to bring a prosecution or launch a criminal investigation against an individual solely because you oppose that person’s politics or because that person is a political enemy or the kinds of things we are seeing now with increasing frequency out of this administration.

You could enact a law that says what previously just executive branch manuals said, which is don’t do that. And enacting a law I think is probably a really important strategy and a really important move. There is one giant caveat there and it’s a real unanswered question in principle. But now the Supreme Court has embraced the unitary executive view that was lurking behind the scenes of the Department of Justice in the 1980s. The view that because the president has to have total control over all personnel under his supervision, that includes all attorneys who work for the government, who work for the executive branch. And to the extent Congress imposes restrictions on how those attorneys do their job, even if it says as a matter of ethics, “No lying.” That too is a constitutional infringement on the president’s power to direct personnel under his watch. If we pass a law codifying those kinds of previously norms, they will be challenged by someone on the right as a problem under unitary executive theory, under the president’s constitutional power and that challenge will go to court and ultimately the Supreme Court.

Supreme Court has, especially in Trump versus United States, now written a lot of language that suggests that exactly those kinds of laws might be problematic exactly in the context of prosecutorial conduct. And my view is while we draft that legislation to codify those standards, we should also draft a constitutional amendment that says, that is, you could call it the Unitary Executive Amendment or the Anti-Unitary Executive Amendment, but that returns us to some rational place of executive power and Congress’s role as the first branch. And for that matter, the court’s role, because these people are ultimately officers of the court in preserving the relative autonomy of law from politics in the United States. I know that many of the constitution is hard. This is the work of generations, it is a 40-year project at best, but so too was the conservative legal movement. And with a movement willing to invest the time and resources, as we’ve seen, the payoffs can be staggeringly large.

Katy Glenn Bass:

Okay, I love that. That’s actually a great note to end on because that is a truly creative proposal for reform that I have not yet encountered, but actually would address a lot of this. And you’re right, it is the work of generations. This is not something that the next Congress could just take care of for us. I think that’s a great idea. Deborah, this has been a really wonderful conversation. Thank you so much for coming on the show and for talking to us about all the work that you’re doing.

Deborah Pearlstein:

Oh, it’s been my pleasure. Thank you so much for taking the time.

Katy Glenn Bass:

And that’s it for this episode of Lawyering Without Law. Join us next time for a conversation on executive power and the war on terror with Alberto Mora. Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote, Fact Checking by Ashna Agarwal. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show was designed by Jay Volmar. Thanks to Deborah Pearlstein who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K. And follow us on social media. Bye for now.